A.^i^p'L^^^ 


/yt^tyiyU-^ 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


THE 


PRACTICE    IN    PROCEEDINGS 


IN   THE 


PROBATE     COURTS; 


INCLUDING    THE 

PROBATE  OF  WILLS  ;  APPOINTMENT  OF  ADMINISTRATORS,  GUARDIANS,  AND 

.    TRUSTEES;   ALLOWANCES;   SALE  OF  REAL  AND  PERSONAL  ESTATE; 

SETTLEMENT    OF    ACCOUNTS;    DISTRIBOTION    OF    ESTATES; 

ASSIGNMENT    OF    DOWER,   WITH    TABLE    SHOWING 

THE    PRESENT   VALUE    OF    ESTATES    IN 

DOWER;    PARTITION  OF  LANDS, 

&C.,   &C.,   &0. 


APPENDIX  OF  PRACTICAL  FORMS, 

DESIGNED    FOR  THE   USE   OP   EXECUTORS   AND   OTHERS 

HAVING   BUSINESS   IN  THE   PROBATE 

COURTS. 


By  WILLIAM  L.   SMITH, 

COUNSELLOR  AT  LAW. 


THIRD    EDITION. 

BOSTON: 
LITTLE,    BROWN,    AND    COMPANY. 

1876. 


Entered  according  to  Act  of  Congress  in  the  year  18G3,  by 

UlTTLK,    BKOWN,    AND   COMPANY, 

In  the  Clerk's  Oflice  of  tlie  District  Court  of  the  District  of  Massachusetts. 


Ejitered  according  to  Act  of  Congress  in  the  year  1876,  by 

LITTI.K,    BKOWN,   AND   COMPANY, 

In  the  Oflice  of  the  Librarian  of  Congress,  at  Washington. 


r 


CAMBRIDGE  : 
PRESS   OF   JOHN    WILSON   AND    SON. 


PREFACE. 


The  design  of  this  work  is  to  present,  in  a  concise 
form,  the  law  and  rules  of  practice  regulating  the  pro- 
ceedings in  the  Prohate  Courts. 

The  leading  cases  in  which  questions  of  probate  law 
have  been  considered  and  determined,  have  been  care- 
fully collected  and  cited.  And  the  instructions  as  to 
the  formal  proceedings  have  been  prepared  with  the 
view  of  practically  aiding  the  correct  and  safe  discharge 
of  the  responsible  trusts  to  which  they  relate. 

The  work  is  submitted  to  persons  interested  in  the 
business  of  the  Probate  Courts,  in  the  hope  that  it  will, 
to  some  extent  at  least,  supply  a  want  that  has  been  a 
subject  of  frequent  remark. 

W.  L.  S. 

Springfield,  Mass.,  September,  1863. 


Since  tlie  publication  of  the  previous  editions  of  this 
work,  many  changes  have  been  made  in  Probate  Law 
by  legislative  enactment,  and  the  general  i)rinoiples 
which  govern  proceedings  in  the  Probate  Courts  have 
been  considered  in  cases  decided  in  the  appellate 
courts  of  this  and  other  states.  In  preparing  this 
(the  third)  edition,  the  changes  made  in  the  statutes, 
and  the  recent  judicial  decisions,  have  been  cited,  and 
every  care  has  l)een  taken  to  make  the  work  complete. 


^y.  L.  s. 


Si'RiNOFiKLD,  Mass.,  June,  1876. 


740811 


CONTENTS. 


CHAPTER  I. 

Pago 
The    Probate    Courts  —  Their    Origin    and    General 

Jurisdiction 1 


CHAPTER  n. 

Probate  of  AYills 17 

Section  1.     As  to  the  Signing  by  the  Testator      ...  18 
,,         2.     As  to  the  Attestation  by  the  Witnesses    .     .  22 
,,         3.     As  to  the  Competency  of  the  Attesting  Wit- 
nesses      24 

,,         4.     Execution  of  Codicils 27 

,,        5.     As  to  the  Testator's  Soundness  of  Mind      .  29 
,,         6.     Wills    Invalidated    by   Fraud    and   Undue 

Influence 39 

,,         7.     Revocation  of  WiUs 41 

,,         8.     Formal  Proceedings 49 

,,         9.     Proof  of  Wills  made  in  another  State      .     .  56 

,,       10.     Proof  of  Lost  Wills 56 

,,       11.     Allowance  of  WiUs  proved  in  another  State  58 

,,       12.     Proof  of  Nuncupative  Wills 59 

CHAPTER  III. 

Deposit,  Custody,  and  Proceedings  in  Case  of  Con- 
cealment OF  Wills 64 

CHAPTER  IV. 

Appointmfcnt  of  Executors  ...  67 


vi  roNTKNT."?, 

CIIAl'TKll    V. 

Pago 

AlTOlMMKNT    OV    A  l>M  1  MSTKATOUS 73 

niAi'rr.ij  vr. 

Ari'OlNT.MKNT    OK    CIlAKUlAN^ &0 

CHAPTER   VII. 

Al-IOINT.MKN  r    OK    TiaSTKKS TlU-.-^TS 101 

CILVrTKll   VIII. 
Ukmoval  AM)  Rksionation  ok  ExKccror.s  and  Others     11-"5 

CHAPTKU    IX. 

i.vventouies  and  the  coi.lectiox  ok  tiik  effects  of 

Deceased  Persons  and  Wards 118 

CHAPTER   X. 
Ai.i.owANCKS  TO  Widows,  Minor  Children,  and  Others     124 

CHAPTER  xr. 

.Sale  ok  I'krsonal  Estate  by  Execitors  and  Others 
—  Investments  by  Guardians  and  Trustees  —  Com- 
promise of  Claims  —  Temporary  Investments  by 
Executors,  &c 130 

CHAPTER   XII. 

Notice  of  the  Appointment  of  Executors,  &c.,  and 

Payment  of  Debts  and  Legacies 135 

CHAPTER   XIII. 
Insolvent  Estates  of  Deceased  Pei:sons 142 

CHAPTER   XIV. 

."^ALEs   OK   Land   by  Executors,   Administrators,  and 

Guardians 164 


CONTENTS.  Vll 

CHAPTER   XY. 

Page 

Accounts  of  Executors,  Administrators,  Guardians, 

AND  Trustees 194 

CHAPTER   XVI. 
Descent  and  Distribution  —  Advancements    ....     220 

CHAPTER   XVII. 
Partition  of  Lands  in  the  Probate  Court    ....     244 

CHAPTER   XVIII. 
Assignment  of  Dower  and  Other  Life-Estates      .     .     257 
Table   Showing   the   Present  Worth   of   Estates    in 

Dower 272 

CHAPTER  XIX. 
Probate  Bonds 279 

CHAPTER  XX. 
Appeals  from  the  Probate  Court 290 

CHAPTER  XXL 
Adoption  of  Children  and  Change  of  Names    .     .     .     296 

APPENDIX. 
Forms  of  Petitions,  &c 303 


INDEX    TO    CASES    CITED. 


[the 

FIGURES 

REFER    TO     THE     PAGES.] 

A. 

Bemis  V.  Bemis 
V.  DriscoU 

138 
275 

Abbott  V.  Abbott 

274 

V.  Steams 

235 

V.  Bradstreet 

9 

Bennett  v.  Brooks 

22 

Abercrombie  v.  Sheldon 

70 

V.  Overing 

285 

Adams  v.  Adams 

126, 

128 

263 

V.  Russell 

286 

V.  Field 

18 

V.  Sherrod 

43.  44 

Aiken  v.  Morse 

137 

147 

V.  Woodman 

286 

Alden  v.  Stebbins 

137 

Bibb  V.  Thomas 

43 

Alger  V.  Colwell 

70 

145 

Bigelow  V.  Bemis 

137 

Allen  V.  Ashley  School  Fund 

138 

V.  Folger 

148 

V.  Public  Administrator 

41 

V.  Morong 

138 

222 

Allen,  Petitioner 

173 

V.  Poole 

236 

Allis  V.  Morton 

95 

Billings  V.  Taylor 

260 

Almy  V.  Crapo 

203 

Blagge  V.  Miles 

228 

Ames  V.  Armstrong 

279 

Blake  v.  Pegram 

216 

218 

Andrees  v.  Weller 

37 

Blanchard  v.  Allen 

137 

151 

Andrews  i\  Tucker 

114, 

115, 

119 

Blood  V.  Hayman 

176, 

177 

Arnold  v.  Sabin 

81,  85 

,  86, 

294 

Boldry  v.  Parris 

23 

Ashley,  Appellant 

236 

Booth  V.  Blundell 

38 

Atherton  v.  Corliss 

229, 

230 

Boston  V.  Boylston 

123 

Austin  V.  Henshaw 

144 

Bowditcli  V.  Soltyk 

9 

Avery  v.  Pixley 

43 

Bowdlear  v.  Bowdlear 

228 

Ayer  v.  Breed 

292 

Bowdoin  V.  Holland 
Boynton  v.  Dyer 

V.  P  &  S.  Railroad 

201, 
199, 

75 
213 
202 

B. 

Bradford  v.  Forbes 

138 

Brant  v.  Wilson 

45,  46 

Bacon,  Appellant 

12 

Brazer  r.  Clark 

279, 

284 

Baker  v.  Dening 

19 

V.  Dean 

126 

Baldwin  v.  Standish 

279 

Breed  v.  Pratt 

33 

V.  Timmins 

167 

Brettun  v.  Fox 

374 

Ballard  v.  Carter 

48 

Brewster  v.  Brewster 

209 

Bancroft  v.  Andrews 

7G, 

172, 

291 

Brimmer  v.  Sohier 

28 

V.  Ives 

228 

liroderick  v.  Broderick 

23 

Bannatyne  v.  Bannatyne 

37 

Brooks  V.  Barrett 

32 

BaptistChurch  v.  Roberts 

44 

V.  Brooks 

288 

Bard  v.  Wood 

195 

V.  Lynde 

141 

Barry  v.  Butlin 

31 

Brown  v.  Anderson 

205 

Barton  v.  Hice 

235 

V.  Kelsey 

200 

V.  "White 

283 

V.  Thorndike 

47 

Bascom  v.  Butterfield 

144, 

147 

Brush  V.  Wilkins 

47 

Bates  V.  Bates 

275 

Bryant  ?».  Allen 

292 

Baxter  v.  Abbott 

31,  3.-1 

,  53 

Bryce,  In  re 

19 

Bayley  v.  Bailey 

46,  56  1 

Brydges  v.  King 

41 

INDEX   TO    CASES    CITED. 


Bullard  v.  Biillard 
Bumside  v.  Merrick 


c. 


23G 
260 


Crowninshiekl  v.  Crowninshield         31 
Cummings  v.  Thompson  153 

Curtip  V.  Bailey  196 

dishing  V.  Field  143,  159 

Cutts  V.  Gilbert  46 


Carlton  v.  Carlton 

27 

Casson  V.  Dade 

23 

D. 

Cliamberlain  v.  Chamberlain 

170 

Chambers  v.  Queen's  Proctor 

32 

Dalton  V.  Savage 

220,  229 

Chandler  v.  Ferris 

40 

Dan  V.  Brown 

44,  57 

V.  Simmons 

1)4 

Darley  v.  Darley 

41 

Chapin  v.  Livermore 

28!) 

Davis"  t;.  Calvert 

33,  39 

V.  Waters 

284,  287 

V.  Cowden 

219 

Chase  r.  Hathaway 

5 

V.  Davis 

57 

r.  Kittredge 

22 

V.  listy 

l(i2 

V.  Lincoln 

52 

V.  Sigoumej' 

44,  57 

Cheney  v.  Webster 

137 

Davis,  Petitioner 

109 

Choate  v.  Arriiigton 

287 

Davy  V.  Smith 

23 

Christopher  i\  Christopher 

47 

Dawes  v.  Boylston 

75 

Church  V.  Crocker 

227 

V.  Head 

162,  285 

V.  Savage 

198 

V.  Shed 

205 

Clark  V.  Clay 

195,  209 

V.  Winship 

284 

V.  Cordis 

96 

Dean  v.  Dean's  Heirs 

52 

V.  Dunncvant 

54 

Dcarl}orn  v.  Preston 

245 

V.  Fisher 

41 

Di'criiig  V.  Adams 

291 

V.  Garlield 

212 

Dclalicld  e.  Parish 

31 

V.  Tainter 

165 

Demerritt  r.  Randall 

53 

V.  Tufts 

104 

Dew  V.  Clark 

38 

Clarkson  v.  De  Peyster 

202,  213 

Dewey  v.  Dewey 

20,  24 

Clerks,  Goods  of 

19 

Dickinson  v.  Barber 

32 

Coates  V.  Cheever 

260 

Dietrick  v.  Dietrick 

39,41 

Cobb  V.  Muzzey 

143,  205 

Dixon  V.  Homer 

101,  102 

r.  Newcomb 

79 

Dodge  V.  Marsh 

41 

Coffin  V.  Cottle 

11 

Doe  V.  Caperton 

24,  53 

Cole  V.  Eaton 

289 

V.  Griffin 

233 

Coles  V.  Trecothic 

18 

V.  Harris 

41,  43 

Colgrove  v.  Robinson 

144 

V.  Lancaslure 

47 

Collier  v.  Simpson 

33 

V.  Manifold 

23 

Colwell  V.  Alger 

69 

V.  Parks 

44 

Commonwealth  v.  Fairbanks 

32 

Dorr  V.  Wainwright 

200,  283 

v.  Keith 

26 

Downer,  In  re 

42 

t'.  Rogers 

26 

Doyle  r.  Cobum 

273 

V.  Wilson 

32.  33 

Draper  v.  Baker 

262 

Conant  v.  Kendall 

289 

Drew  v.  Gordon 

123 

V.  Little 

257 

Drunimond  v.  Parish 

62 

i\  Stratton 

283 

Dublin  V.  Chadbourn 

17 

Conkey  v.  Dickinson 

284 

Duncan  v.  Beard 

53 

Conklfn  v.  Egerton's  Administrator  1G4 

Dunham  i'.  Dunham 

2!)5 

Conner  v.  Shepard 

267 

Durfee  v.  Durfee 

57 

Converse  v.  Converse 

30 

Dyer  v.  Clark 

260,  261 

V.  Wales 

227 

Cooper  V.  Robinson 

179 

Cottle,  Appellant 

12 

E. 

Coughlin's  Case 

38 

Coverdale  v.  Aldrich 

198 

Edmunds  v.  Boston 

202 

Cove  V.  Leach 

233 

Edwards  v.  Ela 

206 

Crippen  v.  Dexter 

59 

i;ia  V.  Edwards 

19,  24 

Crosbie  i".  Macdonald 

28 

Eliot  V.  Eliot 

24 

Crosby  v.  Leavitt 

75 

Elms  V.  Elms 

44 

Cross  r.  Cross 

154 

Emerson  v.  Thompson 

205 

INDEX   TO    CASES    CITED. 


XI 


Emery  v.  Hildreth 
Estes  I'.  Wilkes 
Euston  V.  Seymour 


74 

136 

60 


Fall  River  W.  Co.  v. 

Borden 

157 

Farnum  v.  Boutelle 

149 

Farrer  v.  Parker 

290 

Farwell  v.  Steen 

216 

Fay  V.  Howe 

213 

V.  Muzzey 

198 

V.  Rogers 

286 

1-.  Taylor 

171,  199 

201 

283 

V.  Valentine 

174 

284 

Featherly  t-.  Waggoner 

57 

Field  V.  Hanscomb 

253 

V.  Hitchcock 

219 

Firth  V.  Denny 

229 

Fitts  V.  Morse" 

236 

Flintham,  Appellant 

206 

Ford  V.  Ford 

42,  43 

Foster »'.  Fifield 

128 

198 

V.  Starkey 

205 

France  v.  Andrews 

232 

French  v.  Crosby 

257 

V.  Heywood 

153 

Frith,  Goods  of 

24 

G. 


Garfield  v.  Bemis 
Gay  V.  Jlinot 
Gerrish  v.  Nason 
Gibson  v.  Gibson 
V.  Farley 
Gilbert  v.  Hebard 
Giles  r.  Giles 
Gilmore  v.  Hubbard 
Glover  v.  Havden 
Gonibault  v.  Public  Administrator 
Gould  V.  Mather 
Gran;,'er  v.  Bassett  211,  2l8 

GravMin  v.  Atkinson  18 

Greenou-h  v  Wells  164 

Greenwood's  Case  38 

Gregg  V.  Gregg  196 


138 

12 

21,31 

37 

202 
93 
43 

156 
41 
37 

164 


H. 

Hale  V.  Hale 
Hall  1-.  Hall 

r.  'I'liayer 
Hamilton  c.  Hamilton 
Hancock  r.  Hubbard 
Handy  v.  The  State 
Hannum  v.  Day 
Haradi-n  v.  Larrabee 


125,  127,  203 

20 

12 

33 

232,  285 

54 

168 

224 


Harding  i\  Lamed 

212 

Hardy  v.  Call 

208 

Harrington  i-.  Brown               6 

.  74, 

176 

V.  Harrington 

169 

Harris  r.  Berrall 

43 

Hartwell  v.  Rice 

236 

Harvard  College  v.  Amory 

213 

V.  Gore 

50 

Harwood  v.  Goodright 

46 

Hastings  v.  Rider 

32 

Hathorne  v.  King 

30 

Haven  r.  Foster 

28, 

127 

V.  Grand  Junction  R.R. 

Co. 

109 

Havens  v.  Vandenberg 

47 

Haverhill  L.  &  F.  Association  v. 

Cronin 

148 

149 

Hawes  v.  Humphry 

48,49 

Hayes,  In  re 

60 

Hayes  v.  Jackson 

172 

Haywood  v.  Ellis 

215 

Heard  v.  Drake 

144 

V.  Lodi^e 

282 

Heath  v.  Wells 

173 

Hebern  v.  Warner 

9 

Henry  v.  Est}' 

291 

Henry's  Case 

262 

Higbee  v.  Bacon 

217 

Hildreth  v.  Marshall 

143 

Hill  V.  Davis 

65 

Hix  V.  Whittemore 

38 

Hogan  V.  Grosvener 

20,24 

Holden  v.  Fletcher 

138 

Hollenbeek  r.  Pixley 

125 

126 

Holmes  v.  Beal 

169 

Holyoke  v.  Haskins 

50 

Hooker  r.  Bancroft 

121 

V.  Olmsted     149,  162, 

201 

284 

Howard  v.  Candish 

268 

V.  Priest 

260 

Howard's  AViU 

55 

Howe  V.  Lawience 

157 

Hubbard  v.  Hubbard 

60,61 

r.  Lloyd 

200 

V.  Rawson 

221 

Hudson  V.  Hurlburt 

173 

Hunt  V.  Frost 

176 

V  Hajigood 

5 

i".  Whitney 

159 

I. 


Idicy  V.  Rdwen 

Ipswich  Manitf.  Co.  v.  Story 

Iri^il  V.  Smith 

Ives  f.  Ashley 


Jackson  r.  Bettes 


42,57 

203 

33 

176 


67 


xn 


INDEX   TO    CASES    CITED. 


Jackson  v.  Chri=tman  54 

V.  Knilliii  41 

r.  Le  (iraiige  52 

V.  Luquore  Tvi 

r.  Van  Di'usen  24,  53 

Jenks  t>.  Howlaiiil  2">3 

Jennings  v.  I'cniieriras  31 

Jennison  v.  Ilapgoc.l  176,  199,  200 

Jochumsen  v.  Suffolk  Hank  80 

Johnson  v.  Ames  159,  IHU 

.   V.  Raker  2()f! 

V.  Moore's  Heirs  -'iS 

Johnson's  Will  57 

Jones  r.  Richardson  69,  145 

V.  Murphy  44 


Kennebel  v.  Scrafton  48 

Kent  V.  Barker  228 
V.  Dunhani                         141,  2!(3 

Kimball  v.  Sumner  202 

Kingsbury  v.  Wilmarth  126 

Ki^ii^^ille  i'.  Harrison  54 

Kiiiiie  r.  Kinne  30 

Knapp  r.  Windsor  226 

Knowlton  v.  Johnson  232 


Lakin  v.  Lakin  259 

Lamb  r.  Lamb  201 

Lamson  v.  Schutt  166,  173 

Landon  i".  Howard's  Will  54 

Lamed  v.  Bridge  164 

Larrabee  r.  Tucker  226 

Laughton  r.  Atkins  45 

Lav,  Goods  of  62 

Lazell  I'.  Lazell  257,  274 

Le  Breton  r.  Fletcher  54 

Leland  v.  Felton  203 

Leonard  v.  Leonard  267 

Lewis  V.  Bolitho  291 

V.  JIason  32 

Litchfield  v.  Cudwortb  176 

Little  V.  Gibson  26 

Livermore  v.  Bemis  214,  290 

Longford  r.  Eyre  22 

Lorine  v.  Alline  288 

Loring  V.  Bacon  281 

V.  Blake  236 

V.  Cunningham  199 

V.  Kendall  283 

V.  Park  25 

V.  Steinman  231,  233 

Lovell  V.  Jlinot  213 

Lowell,  Appellant  107 

Luscomb  V.  Ballard  204 


M. 

Main,  Goods  of  87,  233 

Manslield  t'.  Pembroke  2(!9 

Manson  v.  Felton  205 

Marston  i-.  Koe  47,  43 

Martin  v.  Clapp  123 

JIattoon  V.  Cowing  289 

May  V.  May  132,  215 

McGlimsey's  Appeal  206 

Mctiooch  ),'.  McGooeh  81 

Mercier  i'.  (_'hace  257,  274 

Morriam  v.  Leonard  153 

iliddlcscx  Bank  >:  Minot  149 

Middleton  v.  Middleton  43 

Miles  V.  Bovden  28 

Miller  r.  Congdon  141,  200 

V.  Goodwin  187 

V.  Leishman  123 

V.  Miller  40 

Monk  V.  Capen  274 

Jloore  V.  Boston  199 

Moores  v.  White  29 

Morrill  v.  MornW  253 

Momtz  v.  Brough  41 

Moses  V.  Julian  12 

Mulhern  v.  McDavitt  215 


N. 

National  Bank  of  Troy  v. 

Needham  r.  Ide 

Nelson  v.  :McGiffert 
V.  Woodbury 

Newcomb  v.  Goss 

V.  Stebbins 
V.  Williams 

N.  E.  Hospital  v.  Sohier 

Nicholes  v.  Binns 

Nickerson  v.  Buck 

Northampton  v.  Smith 

Norton  v.  Norton 

Nugent  V.  C'loon 

Nussear  v.  Arnold 


o. 

O'Dee  V.  McCrate 
Onions  v.  Tyrer 
Osborne  v.  Cook 
Osgood  I'.  Breed 
Ostrom  V.  Curtis 
Overton  v.  Overton 


Stanton    140 

32 

45 

151 

144,  282 

203 

114,  283 

175 

37 

9,  20,  52,  54 

12,  291 

160,  172 

102 

41 


123 

43 

21 

9 

160 
33 


Paine  v.  Fox 
Palmer  v.  Palmer 


175 
171,  173,  202,  216 


INDEX    TO    CASES    CITED. 


xm 


Parcher  i".  Russell 
Parker  i\  Converse 

t'.  Parker 

V.  Sears 
Parks  V.  Eeilly 
Parsons  v.  Mills 
Patten  v.  Foulton 
Paul  V.  Stone 
Pease  v.  AUis 
Peck  r.  Metcalf 
Peebles  i-.  Case 
Penhallow  r.  Dwight 
Perkins  v.  Finnegau 

V.  Stevens 
Peters  v.  Peters 
Pettis  V.  Brigham 
Pinney  v.  Mc  Gregory 

V.  Barnes 
Piquet,  Appellant 
Pollock  r.  Learned 
Poole  r.  Munday 

V.  Richardson 
Potter  i:  Hazard 
Pratt  r.  Rice 

V.  Atwood 
Prescott  V.  Pitts 
V.  Reed 
Prior  V.  Talbot 
Provis  V.  Reed 
Pryor  v.  Goggin 


R. 

Ramsdill  v.  Wentworth 

RayniiaTn  v.  Wilmarth 

Reed  v.  l)ickennan 
V.  Whitnev 

Reed's  Will       " 

Reynolds  v.  Reynolds 

Richards  v.  Ciiilil 

V.  Nightingale 
V.  Sweatland 

Eicliardson  v.  Bovnton 
V.  Hildreth 
V.  Oakham 

Richmond,  Petitioner 

Right  t".  Price 

Riplev  V.  Sampson 

Robbins  V.  Bates 

V.  Haywood 

Robinson  v.  Hodge 

V.  Hutchinson 

Russell  V.  Hoar 


s. 

Savage  v.  Winchester 
Schififelin  v.  Stewart 


217 
102 
17,  58,  2G9 
106 
245 
150 

57 
137 

26 
253 

55 
119 
Hi 

27 
5,  6 

21 

75,  76 

135 

74,  280 

229 

207 

32 
254 

28 

224 

284 

285 

200,  2«3 

41 

43 


227 

262 

263 

187 

31 

23 

138 

144 

114,  115,  119 

212 

256 

285 

173,  205,  210 

22 

204 

176 

202,  213 

137,  285 

33 

83 


149 

202,  213 


Scott  V.  Hancock 

2T0 

V.  Scott 

42 

Scrubly  v.  Fordham 

42 

Scullings  V.  Richmond 

229 

Sears  v.  Willis 

153 

Selectmen  of  Boston  v.  Boylston      123 

Sever  v.  Russell 

217,  219 

Sewall  V.  Raymond 

172,  174 

Shailer  v.  Bumstead 

41 

Shattuck  V.  Gregg 

258 

Shaw  V.  Paine 

106 

Sherman  v.  Brewer 

122 

V.  Newton 

230,  263 

Shumway  v.  Holbrook 

17 

Sigourney  v.  Sibley 

12,  244 

V.  ^^'etllerell 

203,  217 

Silloway  v.  Brown 

273,  275 

Slocomt)  v.  Slocomb 

56,63 

Smith  V.  Bradstreet 

292 

V.  Dutton 

219 

V.  Fenner 

41 

V.  Jewett 

199 

V.  Rice 

5 

V.  Sherman 

81,  291 

17.  Wait 

42 

Sparhawk  v.  RusseU 

149 

Stanwood  v.  Owen 

149 

Stearnes  v.  Brown 

201 

V.  Fisk 

80,81 

V.  Stearnes 

202,  230,  234 

Stebbins  v.  Lathrop 

65,  86 

V.  Palmer 

81 

V.  Smith 

283 

Steele  v.  Price 

43 

Stevens  v.  Cole 

284,  285 

V.  Gaylord 

203 

V.  Va'ncleve 

19,  30 

Stewart  v.  Lispenard 

30 

Stone  V.  Damon 

33 

Storcr  V.  Storer 

207 

Stoughton  r.  Leigh 

260 

Strong  V.  Moe 

214 

Sturtevant  v.  Sturtevant 

137 

Sullivan  r.  Sullivan 

26 

Sumner  v.  Williams 

180 

Sweet  V.  Boardman 

21 

Swett  V.  Bussey 

245 

Taft  t'.  Stevens 
Tainter  i>.  (Hark 
Tarbell  v.  Parker 
Teuny  v.  Poor 
Terry  v.  Foster 
Tluiclier  V.  Dunham 
Tiuiyer  v.  Homer 
V.  'i'iiaver 
Thomas  v.  Iji  Baron 
Tiiomjjson  v.  Brown 


25G 
164 
173 
1C8,  172,  174 
227 
208 
114 
254 
175,  179 
213 


XIV 


INDEX    TO    CASES    CITED. 


Thompson  v.  McGaw  270 

V.  Thompson  38 

Thompson,  Jix  j>artt  60 

Thompsson's  Case  GO 

Thurston  r.  Maddockd  274 

Tildcn  I'.  Tilden  20 

Trecothick  v.  Austin  11!),  lit!) 

Trimmer  v.  Jackson  21 
Troy  National  Bank  i:  Stanton        140 

Tuttle  V.  Robinson  l!)li 


Van  Alst  v.  Hunter  31 

Veazie  v.  Marett  i;!7 

Verdier  v.  Yerdier  54 

Verry  r.  McClellan  172 

Vincent  v.  Spooner  2G5 


w. 

Wade  I'.  I.obdell  195,  217 

Wales  t'.  Willard  2 
Walker  v.  Lvnian's  Administrator   146 

Walsh  V.  Walsli  109 

Waltham  Hank  r.  Wright  LiS 

Ward  I'.  Ganhier  246 

Warden  v.  Kidiards  164 

Wardwell  v.  Wardwell  93 

Ware  v.  Ware  33 

Warner  v.  Beacli  47,  49 

Washburn  v.  Hale  209 

Waterman  v.  Hawkins  227 

V.  Whitney  41 

Waters  v.  Sticknev    "  9 

V.  Randall  153 

Watson  V.  King  232 

Watts  I'.  Howard  209 

Webster  Bank  v.  Eldridge  100 

Wells  V.  Child  70,  138 

V.  Heath  109 


Welsh  r.  Welsh 
Wendell  V.  French 
Wheeloek  i'.  I'ieree 
White,  Arthur,  Goods  of 
White  I'.  Hritisii  Museum 

V  Cutler 

I".  Rijiton 

t'.  Story 

r.  Swam 

r.  Willis 

V.  Wilson 
AViiTfrins  v.  Sweet 
Wilbor  i".  Dver 
Wilcox  r.  Wilcox 
Wild  V.  Brewer 
Wilder  v.  Goss 

V.  Thayer 
Wildridge  v.  Patterson 
Wilkes  V.  Rogers 
Willey  V.  Thompson 
Williams  v.  American  Bank 
V.  Robinson 
V.  Williams 
Willman  v.  Lawrence 
Wilson  V.  Fosket 
AVinchelsea  v.  Wanchope 
Winship  v.  Bass 
Winslow  r.  (Joodwin 
Winsor  v.  Pratt 
Winthrop  v.  Minot 
Wood  r.  Stone 
Wood's  Estate 
Woodbury  v.  Obear 
Woodward  r.  Lincoln 
Wright  V.  Netherwood 

V.  Wright 
Wyman  v.  Hooper 
V.  Hubbard 
V.  Svmmes 


137 

207,  209 

75 

00,  ti2 

20 

259 

Ii2 

268 

156,  160,  211 

259 

38 

209,  218,  287 

253 

9,  167 

227 

227 

228 

114 

215 

210 

150 

31 

125 

175 

227 

24 

114,  203 

220 

19 

245 

232 

206 

39,  41 

i7,  275 

47 

20,  127,  295 

176 

201 

25 


9,  32 
245.  i 


Y. 


Yeomans  v.  Brown 


160,  108,  169 


THE   PROBATE   COURTS. 


THE   PROBATE   COURTS. 


CHAPTER    I. 

THE  PROBATE   COURTS  —  THEIR   ORIGIN  AND   GENERAL 

JURISDICTION. 

The  colony  charter,  under  which  the  English  settlers 
of  Massachusetts  emigrated  and  organized,  contained  no 
particular  provisions  for  the  establishment  of  courts.  It 
was  framed  for  the  regulation  of  a  commercial  and  land 
corporation,  rather  than  with  a  view  to  the  estaljlishment 
of  a  civil  and  political  government.  The  colonists  were 
strongly  attached  to  the  spirit  of  the  English  law,  and 
adopted  its  leading  maxims,  and  its  forms  and  modes  of 
proceeding,  so  far  as  they  were  applicable  and  necessary 
to  their  peculiar  condition  and  wants.  The  Enghsh  pro- 
bate jurisdiction,  with  which  they  were  famiUar,  was  con- 
fided to  the  ecclesiastical  courts,  whose  jurisdiction  was 
exclusive  and  entirely  separate  from  the  temporal  courts. 
But  there  could  be  no  ecclesiastical  courts  in  the  colony. 
There  was  no  church  establishment  by  means  of  which 
they  could  be  organized  on  the  English  model,  nor  was 
such  a  system  consistent  with  the  religious  sentiments 
and  purposes  of  the  people.  Some  new  provision  was 
therefore  necessary  for  the  exercise  in  the  colony  of  the 
important  powers  given  to  the  ecclesiastical  courts  in 
England.  And  as  at  that  time  there  was  no  apparent 
necessity  for  the  erection  of  a  distinct  probate  court, 

1 


Z  PROCEEDINGS  IN  THE  PROBATE  COURTS. 

the  power  of  admitting  wills  to  probate  and  of  grant- 
ing administration  was  given  to  the  eonnty  courts,  whicli 
were  established  under  tlic  general  authority  given  by 
the  charter  to  the  governor  and  assistants  to  govern  the 
company  and  their  settlements.  The  county  courts  had 
jurisdiction  in  common  law,  probate  and  equit}^  with  an 
ultimate  appeal  to  the  governor  and  assistants.  The 
earlier  records  exhibit  pi'ol)ate  decrees  in  the  same  pages 
\\\[h  judgments  in  civil  actions  and  sentences  in  criminal 
prosecutions.  This  provision,  in  the  existing  condition 
of  the  colony,  was  practically  sufficient.  Orders  were 
passed  from  time  to  time,  as  experience  suggested, 
to  promote  the  convenient  and  prompt  settlement  of 
estates,  but  the  probate  jurisdiction  remained  with  the 
county  courts  until  the  dissolution  of  the  colony  charter. 
Under  the  province  charter  of  William  and  Mary, 
granted  in  1691,  the  courts  were  newly  organized. 
The  superior  court  of  judicature,  the  court  of  com- 
mon pleas,  courts  of  general  sessions,  and  of  justices 
of  the  peace,  were  established.  But  the  charter  which 
gave  to  the  General  Court  autliority  to  erect  courts 
with  civil  and  criminal  jurisdiction,  ordained  that  the 
governor  and  council  should  "  do,  execute,  and  per- 
form all  that  is  necessarj'  for  the  probate  of  wills,  and 
granting  administrations  for,  touching  and  concerning 
any  interests  or  estate  which  any  person  or  persons  shall 
have  within  our  said  province  or  territory."  Thus  the 
probate  jurisdiction  was  taken  from  the  common-law 
courts,  and  in  fact  made  independent  of  the  legislative 
powy.  The  provincial  legislature  passed  an  act  erect- 
ing county  courts  of  probate,  but  it  was  negatived  by 
the  king.i  But  under  the  authority  vested  in  the  gov- 
ernor and  council  by  the  charter,  probate  officers  were 
1  Parsons,  C.  J.,  in  Wales  i;.  Willard,  2  Mass.  120. 


GENERAL   JURISDICTION.  6 

appointed  in  the  several  counties,  who  were  in  effect 
surrogates,  exercising  a  delegated  authority,  from  whose 
decrees  appeals  were  taken  to  the  governor  and  council, 
who  remained  the  supreme  ordinary  or  court  of  probate. 
This  was  the  beginning  of  the  probate  courts  as  distinct 
tribunals. 

The  courts,  thus  constituted,  continued  to  exercise 
probate  jurisdiction  until  the  formal  establishment  of 
the  county  probate  courts  under  the  State  constitution. 
Statutes  were  enacted  by  the  provincial  legislature  rec- 
ognizing their  jurisdiction,  extending  their  powers  and 
duties,  and  to  some  extent  regulating  their  proceed- 
ings. The  constitution  of  1780  provided  for  the  regu- 
lation of  times  and  places  of  holding  probate  courts,  and 
for  appeals  from  the  judges  of  probate  to  the  governor 
and  council  until  the  legislature  should  make  further 
provision.  This  system  continued  in  actual  operation 
until  the  passage  of  the  act  of  1784,  by  which  the  pro- 
bate courts  were  first  formally  established.  That  stat- 
ute provided  for  the  holding  of  a  court  of  probate  within 
the  several  counties  of  the  commonwealth,  and  for  the 
appointment  of  judges  and  registers  of  probate,  and 
transferred  the  appellate  jurisdiction  from  the  gov- 
ernor and  council  to  the  supreme  judicial  court,  which 
was  constituted  the  supreme  court  of  probate.  The 
same  statute  authorized  the  courts  of  probate  to  allow 
wills,  and  grant  administrations  ;  to  appoint  guardians 
for  minors  and  insane  persons  ;  to  examine  and  allow 
the  accounts  of  executors,  administrators,  and  guardi- 
ans, and  to  act  in  such  other  matters  and  things  as  they 
should  have  cognizance  and  jurisdiction  of  by  the  laws 
of  the  commonwealth. 

The  courts  thus  organized  continued  to  exercise  pro- 
bate juiisdiction  until  the  statute  of  1858,  c.  93,  which 


4        PROCEEDINGS  IN  THE  PROBATE  COURTS. 

abolished  the  office  of  jiulge  of  probate,  and  provided 
for  the  appointment  in  each  connt}'  of  a  suitable  person 
to  be  judge  of  probate  and  judge  of  the  court  of  insol- 
vency, and  to  be  called  the  judge  of  probate  and  in- 
solvency. The  same  statute  provided  for  the  election 
of  registers  of  probate  ^  and  insolvency,  to  hold  office 
for  the  term  of  five  3'ears,  and  transferred  all  the  juris- 
diction and  authority  then  exercised  by  the  judges  of 
probate  to  the  judges  of  probate  and  insolvenc}'.  The 
General  Statutes  of  1860  provided  that  judges  of  pro- 
bale  and  insolvency  should  continue  to  hold  their  offices 
according  to  the  tenor  of  their  commissions,  and  that  the 
judge  and  register  of  probate  and  insolvency  in  each 
county  should  continue  to  be  judge  and  register  of  the 
probate  court  in  such  county.^ 

The  peculiar  and  appropriate  jurisdiction  of  the  pro- 
bate court,  embracing  the  probate  of  wills  and  granting 
administrations,  and  their  incidents,  is  the  same  as  that 
of  the  English  ecclesiastical  courts.  Such  was  the  juris- 
diction first  exercised  b}'  the  governor  and  council,  and 
their  surrogates  under  the  province  charter.  But  the 
powers  of  the  probate  court  have  been  gradually  in- 
creased by  a  series  of  state  and  provincial  statutes, 
reaching  back  to  the  time  of  their  separation  from  the 
common-law  courts.  Jurisdiction  has  been  given  to 
them  of  matters  formerly  within  the  exclusive  cogni- 
zance of  the  courts  of  common  law,  and  not  analogous 
to  any  proceeding  of  the  probate  court  as  a  court  of 
ecclesiastical  jurisdiction.    These  various  statutes,  based 

1  Registers  of  probate  liad  been  previously  elected  under  stat.  of  1856, 
c.  173.  The  General  Statutes  provide  that  a  register  of  probate  shall  be 
elected  in  each  county  in  1863,  and  every  fifth  year  thereafter.  Gen. 
Sts.  c.  10,  §  4. 

2  Gen.  Sts.  c.  117,  §  1 ;  c.  119,  §  1.  By  stat.  of  1862,  chap.  68,  probate 
courts  are  made  courts  of  record. 


GENERAL   JURISDICTION.  5 

upon  the  suggestions  of  practical  experience,  and  passed 
with  a  view  of  promoting  the  prompt  and  economical 
disposition  of  the  matters  to  which  they  relate,  have 
resulted  in  establishing  the  large  jurisdiction  now  exer- 
cised by  the  probate  courts. 

This  jurisdiction  is  separate  and  exclusive.  By  the 
separation  of  the  probate  and  common-law  jurisdictions 
under  the  provisions  of  the  province  charter,  the  separa- 
tion between  them  became  as  well  settled  in  this  country 
as  in  England,  and  the  same  distinction  has  been  sub- 
stantially maintained.  The  decrees  of  the  probate  court, 
upon  subjects  within  its  jurisdiction,  are  conclusive  and 
final,  unless  appealed  fi'om.  They  cannot  be  called  in 
question  in  the  common-law  courts  upon  collateral  pro- 
ceedings. A  writ  of  error  will  not  lie  to  a  judgment 
of  the  probate  court ;  nor  will  certiorari  lie  from  the 
supreme  court  to  the  probate  court.^  None  of  the  pro- 
cesses devised  to  re-examine  the  decisions  of  the  com- 
mon-law courts  are  appHcable  to  the  probate  courts. 

And  as  the  proceedings  of  the  probate  courts  are  not 
according  to  the  course  of  the  common  law  and  cannot 
be  revised  in  a  common-law  court,  by  a  common-law 
process,  its  decrees,  when  the  court  exceeds  its  ju- 
risdiction, are  necessarily  void.  Other  erroneous  and 
irregular  judicial  proceedings,  which  can  be  revised  by 
a  superior  common-law  court,  are  voidable  only,  and  are 
good  and  valid  until  reversed.  But  the  irregular  decree 
of  the  probate  court  is  a  nullity,  and  may  be  set  aside 
in  any  collateral  proceeding  by  plea  and  proof.^  The 
sure  and  convenient   remedy,   however,  of  any  party 

'  Peters  v.  Peters,  8  Cush.  542. 

-  Where  original  adiiiinistratioii  was  granted  after  twenty  years,  con- 
trary to  tiie  statute,  it  was  liekl  void  in  a  collateral  salt.  Wales  v.  Wil- 
lard,  2  Mass.  120,  and  see  Hunt  v.  Ilajjgood,  4  Mass.  117  ;  Smith  v.  Rice, 
11  Mass.  G(J7 ;  Chase  v.  Hathaway,  14  Mass.  227. 


b        PROCEKDINCS  IN  THE  PROBATE  COURTS, 

aggrieved  by  a  decree  of  the  probiite  court,  is  b}'  nppeal 
to  the  supreme  court  of  probate  in  the  manner  i)rovided 
by  statute.^ 

Tlie  supreme  judicial  court  is  constituted  the  supreme 
court  of  probate.  This  appelhite  jurisdiction  is  vested 
in  the  same  court  with  that  from  the  common-hiw  courts, 
and  that  for  a  ver}'-  wise  reason,  that  there  miglit  not  be 
conihcting  decisions  between  two  su[)reme  courts  a(hnin- 
istering  the  same  hiws ;  but  in  another  and  distinct 
cajjacity  as  if  it  were  a  distinct  court. '-^  It  lias  a  super- 
intending and  revisoiy  power  to  re-examine  and  afQrm 
or  reverse  all  orders  and  decisions  in  probate,  but  as  an 
appellate  pioljate  court. 

GENERAL   STATUTE   JURISDICTION. 

The  jurisdiction  of  the  probate  courts  is  incidentally 
considered  in  the  following  chapters  in  connection  with 
the  various  subjects  of  winch  they  have  cognizance. 
Their  geneial  jurisdiction  is  thus  defined  by  statute  :  ^ 

"  The  probate  court  for  each  county  shall  have  juris- 
diction of  the  probate  of  wills,  granting  administration 
of  the  estates  of  persons  who  at  the  time  of  their  decease 
were  inhabitants  of  or  residents  in  the  county,  and  of 
persons  who  die  without  the  State  leaving  estate  to  be 
administered  within  such  county  ;  ^  of  the  appointment 

1   Post,  (hap.  XX. 

^  I'eters  v.  Peters,  8  Cush.  542.  In  the  ophiion  in  this  case  the  sub- 
ject of  the  jurisdiction  of  tiie  probate  courts  is  examined  at  length  by 
Shaw,  C.  J. 

•'  Cen.  St.N.  c.  117,  §  2. 

••  Post,  cliap.  V.  —  Wliere  letters  of  administration  have  been  granted 
in  any  county  on  the  estate  of  a  person  d^'ing  without  tlie  commonwealtli, 
parol  evidence  is  admissible  to  show  that  the  deceased  left  estate  within 
such  county,  and  so  the  y;rant  of  administration  was  valid,  notwithstanding 
that  no  such  esta  e  was  included  in  the  inventory  exhibited  to  the 
judge  of  probate.     Harrington  v.  Brown,  5  Pick.  61'J. 


GENERAL    JURISDICTION.  7 

of  guardians  to  minors  and  others,  and  of  all  matters 
relating  to  the  estates  of  such  deceased  persons  and 
wards ;  and  of  petitions  for  the  adoption  of  children  and 
the  change  of  names. 

When  a  case  is  within  the  jurisdiction  of  the  probate 
court  in  two  or  more  counties,  the  court  which  first  takes 
cognizance  thereof  by  the  commencement  of  proceedings, 
shall  retain  the  same ;  and  administration  or  guardian- 
ship first  granted  shall  extend  to  all  the  estate  of  the 
deceased  or  ward  in  this  State,  and  exclude  the  jurisdic- 
tion of  the  probate  court  of  every  other  county. 

The  jurisdiction  assumed  in  any  case  by  the  court,  so 
far  as  it  depends  on  the  place  of  residence  of  a  person, 
shall  not  be  contested  in  any  suit  or  proceeding,  except 
in  an  appeal,  in  the  original  case,  or  when  the  want  of 
jurisdiction  appears  on  the  same  record." 

The  proltate  courts,  concurrently  with  the  supreme 
judicial  court,  may  hear  and  determine  in  equity  all 
matters  in  relation  to  trusts  created  by  will,^  and  have 
jurisdiction  over  all  matters  relating  to  the  sale  of  trust 
estates ;  ^  and  may  hear  and  determine  all  matters  arising 
under  wills. ^ 

MISCELLANEOUS    PROVISIONS     KELATING    TO    PKOBATB 
COURTS. 

[General  Statutes,  Chap.  117.] 

Sect.  19.  The  several  judges  shall  from  time  to  time 
make  rules  for  regulating  the  piactice  and  conducting 
the  business  in  their  courts  in  all  cases  not  expressly 
provided  for  l)y  law ;  and  sliall  return  a  statement  of 
their  rules  and  course  of  proceedings  to  the  supreme 
judicial   court,  as   soon  as  convenientl}^  may  be  after 

»  Gen.  Sts.  c.  100,  §  22.  '-'  Stat!  18G9,  c.  331. 

8  Stat.  187:5,  c.  221. 


8  PROCEEDINGS    IN    THE    I'UOBATE    COURTS. 

making  the  same.  The  supreme  judicial  court  may  alter 
and  amend  the  same,  and  make  other  and  further  rules 
from  time  to  time  for  regulating  the  proceeding  in  the 
probate  courts  as  it  deems  necessary,  in  order  to  secure 
regularity  and  uniformity  in  the  proceedings. 

Sect.  20.  The  judge  shall  make  and  issue  all  war- 
rants and  processes  necessary  or  proper  to  carry  into 
effect  the  powers  granted  to  him ;  and  when  no  form 
for  a  warrant  or  process  is  prescribed  by  statute  or  the 
rules  of  the  court,  he  shall  frame  one  in  conformity  with 
the  principles  of  law,  and  the  usual  course  of  proceed- 
ings in  this  State. 

Sect.  21.  All  his  decrees  and  orders  shall  be  made 
in  writing,  and  the  register  shall  record,  in  books  to  be 
kept  for  the  purpose,  all  decrees  and  orders,  wills  proved 
in  the  court,  with  the  probate  thereof,  letters  testamen- 
tary and  of  administration,  warrants,  returns,  reports, 
accounts,  and  bonds  ;  and  all  other  acts  and  proceedings 
required  to  be  recorded  by  the  rules  of  the  court  or  a 
special  order  of  the  judge. 

Sect.  22.  When  the  validity  of  a  decree  is  drawn 
in  question  in  another  suit  or  proceeding,  every  thing 
necessary  to  have  been  done  or  proved  in  order  to  ren- 
der the  decree  valid,  which  might  have  been  proved  by 
parol  evidence  at  the  time  of  making  the  decree,  and 
was  not  required  to  be  recorded,  shall  after  twenty 
years  from  such  time  be  presumed  to  have  been  done  or 
proved,  unless  the  contrary  appears  on  the  same  record. 

Sect.  23.  Orders  of  notice  and  other  official  acts 
which  are  passed  as  matters  of  course  and  do  not  require 
a  previous  notice  to  an  adverse  party,  ma}'  be  made  and 
done  in  vacation  as  well  as  in  court.  [Registers  of  pro- 
bate may  issue  orders  of  notice  and  citations  at  any  time. 
Stat.  1863,  c.  156.      In  any  proceeding,  notice  may  be 


GENERAL    JURISDICTION.  9 

dispensed  with  when  all  the  parties  entitled  thereto 
assent  to  such  proceeding,  or  waive  notice  in  writing. 
Stat.  1874,  c.  346.] 

Sect.  24.  Any  warrant  or  commission  for  the  ap- 
praisement of  an  estate,  for  examining  the  claims  on 
insolvent  estates,  for  the  partition  of  real  estate,  or  for 
the  assignment,  dower,  or  other  interests  in  real  estate, 
may  be  revoked  by  the  judge  for  sufficient  cause ;  and 
he  may  thereupon  issue  a  new  commission,  or  proceed 
otherwise  as  the  circumstances  of  the  case  shall  require.^ 

Sect.  25.  In  cases  contested  either  before  the  probate 
court  or  supreme  court  of  probate,  costs  in  the  discretion 
of  the  court  may  be  awarded  to  either  party,  to  be  paid 
by  the  other,  or  to  either  or  both  parties  to  be  paid  out 
of  the  estate  which  is  the  subject  of  the  controversy,  as 
justice  and  equity  shall  require.^ 

Sect.  26.  When  costs  are  awarded  to  be  paid  by  one 
part}^  to  the  other,  said  courts  may  issue  execution  there- 
for in  like  manner  as  is  practised  in  the  courts  of  common 
law. 

[Oaths  required  in  proceedings  in  probate  courts 
may  be  administered  by  the  judge  or  register  in  or  out 

1  As  to  the  <jeneral  power  of  a  probate  court  to  correct  errors  arising 
out  of  fraud  or  mistake  in  its  own  decrees,  see  Waters  v.  Stickney, 
12  Allen,  1. 

2  General  rule  as  to  costs.  Under  the  general  rule,  no  costs  are  allowed 
in  contested  cases,  in  the  probate  court,  or  supreme  court  of  probate. 
When  tlie  contest  is  made  upon  frivolous  pretences,  or  for  reasons  which 
the  appellant  knew  or  ought  to  have  known  were  unfounded,  costs  are 
allowed.  But  when  the  case  presents  questions  of  law,  upon  wiiich  the 
parties  may  not  unreasonably  differ  and  upon  which  either  may  properly 
claim  the  instructions  of  the  court,  no  costs  are  allowed.  Osgood  v. 
Breed,  12  Mass.  530.  See  Nickerson  v.  Buck,  12  Cush.  382;  Woodbury 
V.  Obear,  7  Gray,  472  ;  Abbott  v.  Bradstreet,  3  Allen,  587 ;  Waters  i;. 
Stickney,  12  Allen,  17;  Wilco.x  r.  Wilco.x,  13  Allen,  256;  Bowditch  y. 
Soltyk,  yy  Mass.  141;  Hebron  u.  Werner,  112  Mass.  209. 


10       PROCEEDINGS  IX  THE  PROBATE  COURTS. 

of  court,  or  by  a  justice  of  the  peace,  and  when  admin- 
istered out  of  court  a  certificate  thereof  shall  be  returned 
and  filed  or  recorded  with  the  proceedings  ;  provided  that 
the  iud^e  may  require  an}'  such  oath  to  be  taken  before 
him  in  open  court.     Stat.  1871,  c.  122.] 

Sect.  29.  Persons  having  business  in  the  court  may- 
select  such  newspapers  as  tliey  may  prefer  for  the  pub- 
lication of  legal  notices  ordered  upon  their  applications; 
but  if  the  judge  deems  the  newspaper  thus  selected 
insufficient  to  give  due  publicity,  he  may  order  the  pub- 
lication in  one  other  newspaper. 

Sect.  30.  The  register  shall  make,  without  charge, 
one  copy  of  all  wills  proved,  inventories  returned,  and 
accounts  settled;  of  all  partitions  of  real  estate  and 
assigiuiients  of  dower  ;  and  of  all  orders  and  decrees  of 
the  court ;  and  shall  deliver  the  same  when  demanded 
to  the  executor,  administrator,  guardian,  widow,  heir,  or 
other  party  principally  interested.  For  additional  copies 
of  sucli  documents,  and  copies  of  other  papers,  he  shall 
be  paid  by  the  person  demanding  the  same  at  the  rate  of 
twelve  cents  a  page. 

Sect.  31.  Each  county  shall  provide  all  books  neces- 
sar}'  for  keeping  the  records,  and  all  printed  blanks  and 
stationery,  used  in  probate  ])roceedings. 

Sect.  32.  No  clerk  or  otlier  person  employed  in  the 
ofiBce  of  a  probate  court  shall  be  commissioner  of  insol- 
vency or  aj)praiser  or  divider  of  an  estate,  in  any  case 
within  the  jurisdiction  of  tlie  court,  unless  his  appoint- 
ment is  requested  by  all  parties  in  interest. 

JUDGES   OF   THE   PROBATE   COURT. 
[General  Statutes,  Chap.  119.] 

Sect.  1.  The  judges  of  probate  and  insolvency  shall 
continue  to  hold  their  offices  according  to  the  tenor  of 


GENERAL    JURISDICTION.  11 

their  commissions  ;  and  as  vacancies  occur  tliey  shall  be 
filled  ill  the  manner  provided  bj  the  constftution,  so  that 
there  shall  be  one  judge  in  each  county. 

Sect.  2.  Each  judge,  before  entering  upon  the  duties 
of  his  office,  in  addition  to  the  oaths  prescribed  by  the 
constitution,  shall  take  and  subscribe  an  oath  that  he 
will  faithfully  dischai'ge  said  duties,  and  that  he  will  not 
during  his  continuance  in  office,  directly  or  indirectly, 
be  interested  in  or  benefited  by  the  fees  or  emoluments 
arising  from  any  suit  or  matter  pending  in  either  of  the 
courts  of  which  he  is  judge  ;  which  oath  shall  be  filed 
in  the  probate  office. 

Sect.  3.  The  judges  may  interchange  services  or 
perform  each  other's  duties  when  they  find  it  necessary 
or  convenient. 

Sect.  4.  If  a  judge  is  a  party,  or  interested  to  the 
amount  claimed  of  one  hundred  dollars  exclusive  of 
interest,  in  any  case  arising  in  his  county,  or  is  absent 
or  unable  to  perform  his  duties,  and  no  judge  acts  for 
him,  under  the  provisions  of  the  preceding  section,  or  if 
there  is  a  vacancy  in  the  office  in  any  county,  the  duties 
shall  be  performed  in  the  same  count}'"  by  the  judge  of 
any  other  county  designated  by  the  register,  from  time 
to  time,  as  necessity  or  convenience  may  require.^     [No 

1  Coffin  V.  Cottle,  9  Pick.  287. 

A  jiiilge  of  probate  lias  no  jurisdiction  over  a  will  containing 
a  devise  of  more  tlian  one  hundred  dollars  in  value  to  a  person  of 
whose  will  he  has  been  appointed  executor.  Bacon,  Appellant,  7  Gray, 
391. 

Where  tlie  judjje  was  a  ilebtor  to  the  estate,  though  the  debt  was 
wholly  secured  by  mortgage,  it  was  held  that  he  had  no  jurisdiction  and 
tiiat  the  probate  of  tlie  will  before  him  was  void.  Gay  v.  Minot,  o  Cush. 
852. 

A  bequest  of  n^oney  to  trustees,  to  be  devoted  to  the  use  and  benefit 
of  indigent  persons  in  certain  towns,  does  not  make  a  judge  of  probate 
who  is  an  inhabitant  of  one  of  those  towns  interested  in  the  probate  of 


12  IMIOCKEDIXGS    IN   THE    PROBATE   COURTS. 

judge  of  probate  and  insolvency  shall  be  disqualified 
from  acting  in  any  case  by  reason  of  interest,  unless  such 
interest  is  direct,  and  to  the  amount  of  one  hundred 
dollars  of  principal  claimed  by  or  against  him,  nor  until 
the  same  appears  of  record  in  the  case.  Stat.  1860,  c. 
145.] 

Sect.  5.  The  register  shall  certify  on  his  records  the 
times  during  which,  or  the  cases  in  which  the  judge  of 
another  county  acts.  Bonds  required  to  be  given  to  the 
judge  shall  be  given  to  the  judge  appointed  for  the 
county,  or,  in  case  of  vacancy,  to  the  acting  judge,  and 
his  successors  in  office,  and  all  business  shall  be  done  in 
his  name,  or  the  name  of  the  probate  court,  or  the  court 
of  insolvency  for  the  same  county,  as  the  case  may  be ; 
but  bonds  may  be  apjD roved,  and   other  acts  required 

the  will  which  contains  the  bequest.  Northampton  v.  Smitli,  11  Met. 
390. 

Where  the  judge  had  a  valid  claim  against  the  estate  of  a  deceased 
person,  but  had  determined  in  his  own  mind  not  to  enforce  his  claim,  and 
exercised  jurisdiction  over  the  estate  by  granting  letters  of  administra- 
tion, it  was  held,  that  he  was  nevertheless  interested  as  a  creditor  of  the 
estate,  and  that  the  grant  of  administration  was  therefore  void  for  want 
of  jurisdiction.  Sigourney  v.  Sibley,  21  Pick.  101 ;  and  such  void  admin- 
istration is  not  rendered  valid  by  the  circumstance  that  exception  was  not 
taken  to  his  jurisdiction.     Ibid. 

The  appointment  of  a  special  administrator  on  the  estate  in  which  the 
judge  is  interested  is  void.     Sigourney  v.  Sibley,  22  Pick.  507. 

The  fact  that  the  judge  had  acted  as  the  agent  or  attorney  of  a  cred- 
itor, heir,  or  other  person  interested  in  an  estate,  although  such  action 
was  illegal,  does  not  make  him  interested  so  as  to  oust  him  of  his  juris- 
diction.    Cottle,  Appellant,  5  Pick.  483. 

A  judge  cannot  act  in  any  matter  in  which  a  near  relative  or  connec- 
tion is  one  of  the  parlies  ;  and  a  brother-in-law  or  father-in-law  is  such  a 
connection.  But  he  is  not  disqualified  by  the  remote  and  contingent  in- 
terest of  a  relative  who  is  not  a  party  to  the  proceeding.  Hall  v.  Thayer, 
105  Mass.  219;  Aldrich,  Appellant,  110  Mass.  189. 

A  judge  who  has  written  a  will  is  disqualified  to  sit  upon  the  probate 
of  it ;  but,  on  appeal,  it  may  be  proved  in  the  court  above.  Moses  v. 
Julian,  45  N.  H.  52. 


JUDGES   OF   PROBATE.  13 

to  be  done  or  certified  by  the  judge  may  be  approved, 
done,  or  certified,  b}^  the  acting  judge. 

Sect.  6.  No  judge  shall  be  retained  or  employed  as 
counsel  or  attorney,  either  in  or  out  of  court,  in  any  suit 
or  matter  which  may  depend  on  or  in  any  way  relate  to 
a  sentence,  decision,  warrant,  order,  or  decree,  made  or 
passed  by  him  ;  nor  for  or  against  an  executor,  adminis- 
trator, or  guardian,  appointed  within  his  jurisdiction,  in 
a  suit  brought  by  or  against  the  executor,  administrator, 
or  guardian,  as  such  ;  nor  in  a  suit  relating  to  the  official 
conduct  of  such  party ;  nor  for  or  against  a  debtor, 
creditor,  or  assignee,  in  a  cause  or  matter  arising  out  of 
or  connected  with  any  proceedings  before  him ;  nor  in 
an  appeal  in  such  cause  or  matter. 

Stat.  1870,  c.  275.  Judges  of  the  probate  courts  may 
transact  business  out  of  court  at  any  time  and  place, 
when  all  parties  entitled  to  notice  therein  assent  thereto 
in  writing,  or  voluntarily  appear;  entering  their  decrees 
in  such  cases  as  of  such  sessions  of  the  court  as  the 
convenience  of  the  parties  requires. 

REGISTERS  OF  THE  PROBATE  COURT. 

Sect.  7.  Every  register  of  probate  and  insolvency, 
before  entering  upon  the  duties  of  his  office,  in  addition 
to  the  oaths  prescribed  by  the  constitution,  shall  take 
and  subscribe  an  oath  that  he  will  faithfully  discharge 
said  duties,  and  that  he  will  not,  during  his  continuance 
in  office,  directly  or  indirectly  be  interested  in  or  bene- 
fited by  the  fees  or  emoluments  arising  from  any  suit 
or  matter  pending  in  either  of  the  courts  of  Avhich  he 
is  register ;  which  oath  shall  be  filed  in  the  probate 
office. 

Sect.  8.     He  shall  give  bond,  with  condition  that  he 


14       PROCEEDINGS  IN'  THE  PROBATE  COURTS. 

will  faithfully  discharge  the  duties  of  his  office,  to  the 
treasurer  of  the  Commonwealth,  in  a  sum  not  less  than 
one  thousand,  and  not  exceeding  ten  thousand  dollars, 
as  ordered  by  the  judge,  with  one  or  more  sureties  ap- 
proved by  him. 

Sect.  9.  No  register  shall  be  of  counsel  or  attorney 
either  in  or  out  of  court,  in  any  suit  or  matter  pending 
in  either  of  the  courts  of  which  he  is  register;  nor  in  an 
appeal  therefrom  ;  nor  shall  he  be  executor,  adnunistra- 
tor,  guardian,'  commissioner,  appraiser,  divider,  or  as- 
signee, of  or  upon  an  estate  Avithin  the  jurisdiction  of 
either  of  the  courts  of  which  he  is  register ;  nor  be 
interested  in  the  fees  or  emoluments  arising  from  either 
of  said  trusts. 

Sect.  10.  The  register  shall  have  the  care  and 
custody  of  all  books,  documents,  and  papers  apper- 
taining to  the  courts  of  which  he  is  register,  or  de- 
posited with  the  records  of  insolvency,  or  filed  in  the 
probate  office  ;  and  shall  carefully  preserve  the  same,  to 
be  delivered  to  his  successor.  He  shall  perform  such 
other  duties  appertaining  to  his  office  as  may  be  re- 
quired by  law  or  prescribed  by  the  judge. 

Sect.  11.  The  judges  for  the  counties  of  Suffolk, 
Middlesex,  Worcester,  Essex,  and  Norfolk,  may  each 
appoint  an  assistant  register  of  probate  and  insolvency 
for  his  count}',  who  shall  hold  his  office  for  three  years 
unless  sooner  removed  by  the  judge.  Before  entering 
upon  the  discharge  of  his  duties,  the  assistant  register 
shall  take  the  oaths  prescribed  by  the  constitution,  and 
shall  give  bond,  with  condition  for  the  faithful  perfor- 
mance of  the  duties  of  his  office,  to  the  treasurer  of  the 
Commonwealth,  in  a  sum  not  less  than  five  hundred  nor 

1  A  judge  or  register  of  probate  may  be  appointed  guardian  of  liis 
minor  child.     Stat.  1870,  c  2ti3. 


REGISTERS    OF    PROBATE.  15 

more  than  five  thousand  dolhirs,  as  oi'dered  by  the  judge, 
with  one  or  more  sureties  approved  by  him. 

Sect.  12.  The  assistant  register  shall  perform  his 
duties  under  the  direction  of  the  register,  and  shall 
pay  over  to  him  all  fees  and  sums  received  as  his  as- 
sistant, to  be  accounted  for  as  required  by  law.  He 
may  authenticate  papers,  and  perform  such  other  duties 
as  are  not  performed  by  the  register.  In  case  of  the 
absence,  neglect,  removal,  resignation,  or  death,  of  the 
register,  the  assistant  may  complete  and  attest  any 
records  remaining  unfinished,  and  act  as  register  until 
a  new  register  is  qualified  or  until  the  disability  is 
removed. 

Sect.  13.  If  a  vacancy  occurs  in  the  office  of  register, 
the  governor,  with  the  advice  and  consent  of  the  council, 
may  appoint  some  person  to  fill  the  office,  until  another 
is  elected,  as  provided  in  chapter  ten. 

Sect.  14.  Upon  the  death,  resignation,  removal,  or 
absence,  of  the  register,  if  there  is  no  assistant  register, 
or  if  he  is  also  absent,  the  judge  shall  appoint  a  suitable 
person  to  act  as  temporary  register  until  a  register  is 
appointed  or  elected  and  qualified,  or  until  the  disability 
is  removed. 

Sect.  15.  Such  temporary  register  shall  be  sworn 
before  the  judge,  and  a  certificate  thereof,  with  his  ap- 
pointment, shall  be  recorded  with  the  proceedings  of 
each  court  in  which  he  acts. 

Stat.  1864,  c.  93.  All  papers  or  instruments  dis- 
charging any  claim,  or  purporting  to  acknowledge  the 
pei'formance  of  any  duty  or  the  payment  of  any  money, 
for  which  any  executor,  administrator,  guardian,  or  trus- 
tee is  chargeable  or  accountable  in  a  court  of  probate, 
shall,  upon  the  request  of  a  party  interested,  be  recorded 
in  the  registry  of  said  court ;  and  the  registers  of  probate, 


16       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

in  their  respective  counties,  shall  enter,  record,  index, 
and  certify  the  original  paper  or  instrument  offered  as 
aforesaid,  and  shall  receive  for  the  service  the  like  com- 
pensation as  registers  of  deeds  would  be  entitled  to  de- 
mand for  like  service,  to  be  paid  by  the  person  leaving 
such  paper  or  instrument  for  record,  at  the  time  of  leav- 
ino;  the  same. 


CHAPTER   II. 

PROBATE   OF   WILLS. 

The  probate  of  a  will  is  necessary  to  establish  its  due 
execution.  All  questions  as  to  the  personal  capacity  of 
the  testator,  the  signing  of  the  will  by  him,  and  the 
attestation  of  the  witnesses,  must  be  determined  by  the 
probate  court,  or,  on  appeal,  by  the  supreme  coart  of 
probate.  Such  questions  cannot  be  determined  in  the 
courts  of  common  law,^  and  the  decree  of  the  probate 
court  allowing  or  disallowing  a  will  is  conclusive,  unless 
appealed  from ;  it  cannot  be  examined  collaterally  in 
any  other  court,  except  on  a  question  of  jurisdiction. 
But,  until  the  will  is  admitted  to  probate,  it  is  legally 
inoperative.  Neither  real  nor  personal  estate  will  pass 
by  it,  for  it  cannot  be  used  as  evidence  of  title .^ 

THE  FACTS  TO  BE  PKOVED  IN  SUPPORT  OF  THE  WILL. 

The  party  seeking  the  probate  of  the  will  must  prove 
affirmatively : 

That  the  will  was  signed  by  the  testator,  or  by  some 
person  in  his  presence  and  by  his  express  direction. 

That  the  will  was  attested  and  subscribed  in  the 
presence  of  the  testator  by  three  or  more  competent 
witnesses ;  and 

'  Dublin  V.  Cliadbourne,  16  Mass.  433;  Parker  v.  Parker,  11  CusIl 
519. 

2  Gen.  St8.  c.  92,  §  38.     Sliuraway  v.  Ilolbrook,  1  Pick.  114. 

2 


18       PROCEEDINGS  IN  THE  PROHATE  COURTS. 

That  the  testator,  at  tlie  time  when  the  will  was  exe- 
cuted, was  of  full  age  ^  and  sound  mind. 

All  these  facts  must  be  proved.  Proof  of  any  one  or 
more  of  them  is  not  sufficient  unless  all  are  established. 

Section  I. 

AS   TO   THE   SIGNING    BY   THE   TESTATOP.. 

The  statute  provides  that  no  wdlls  shall  be  effectual  to 
pass  or  in  any  way  to  affect  au}^  estate,  real  or  personal, 
"  unless  it  is  in  waiting  and  sic/ned  hy  the  testator,  or  hy 
some  person  in  his  presence  and  by  his  express  direction, 
and  attested  and  subscribed  in  his  presence  by  three  or 
more  competent  witnesses."  ^ 

Questions  as  to  the  signing  by  the  testator,  and  as  to 
the  attestation  of  the  witnesses,  have  been  frequently 
considered  and  determined  hy  the  courts. 

It  is  not  necessary  that  the  testator's  name  be  signed 
at  the  end  of  the  will,  though  such  is  the  common  and 
advisable  practice.  Where  a  will  commenced  in  the 
common  form,  "•  I,  A.  B.,  do  make,"  &c.,  the  whole 
will  being  in  the  testator's  handwriting,  it  was  held 
to  be  sufficiently  signed,  thougli  there  was  no  formal 
signature."     Tlie  signature,  whatever  may  be  its  local 

1  Full  age  is  reached  on  the  day  next  preceding  the  anniversary  of 
the  person's  hirtli.  Thus,  if  he  was  born  on  the  second  day  of  January, 
1840,  he  became  of  age  on  the  first  day  of  January,  1861 ;  and  as  frac- 
tions of  a  day  are  not  recognized  by  law,  his  full  age  was  reached  on  the 
first  instant  of  the  latter  day. 

2  Gen.  Sts.  c.  92,  §  6.  To  this  rule  exceptions  are  made  bj^  statute  in 
the  following  cases  :  Wills  made  in  conformity  with  the  law  existing  at 
the  time  of  their  execution ;  wills  made  out  of  the  State  which  might  be 
proved  under  the  laws  of  the  state  or  country  in  which  they  were  made  ; 
and  the  nuncupative  wills  of  soldiers  and  mariners.     Ibid.  §§  7,  8,  9. 

3  GraN'son  v.  Atkinson,  2  Ves.  454 ;  Coles  v.  Trecothick,  9  Ves.  249 ; 
Adams  v.  Field,  21  Vt.  256. 


PROBATE   OF    WILLS.  19 

position,  must  have  been  made  with  the  intention  of 
authenticating  the  entire  instrument.  One  signature  is 
sufficient,  though  the  will  be  contained  in  several  pages 
or  sheets,  and  even  when  the  testimonium  clause  referred 
to  the  preceding  sheets  as  severally  signed,  and  the  will 
was  in  fact  signed  at  the  end  only,  the  signing  was  held 
sufficient,  it  being  evidently  the  testator's  intention  that 
his  signature  should  apply  to  the  whole. ^ 

The  testator  may  sign  his  will  by  making  his  "  mark  ;  "  ^ 
and  the  fact  that  he  was  not  able  to  Avrite  his  name  is 
not  required  to  be  proved.^ 

The  testator's  name  ma}^  be  written  by  some  other 
person,  but  it  must  be  done  in  his  presence  and  by  his 
express  direction ;  and  the  fact  that  the  will  was  signed 
in  that  manner  should  be  stated  in  the  attestation  clause. 
Where  the  testator's  signature  was  made  by  another 
person  guiding  his  hand,  with  his  consent,  and  he  after- 
wards acknowledged  it,  the  signing  was  held  to  be  the 
act  of  the  testator,  and  sufficient.'^ 

It  is  not  essential  that  the  very  act  of  signing  by  the 
testator  should  be  seen  by  the  witnesses.  The  statute 
does  not  require  him  to  sign  in  their  presence.  His 
acknowledgment  that  the  name  signed  to  the  instrument 

1  Winsor  v.  Pratt,  5  Moore,  484  ;  Ela  v.  Edwards,  16  Graj,  91. 

2  Niokerson  v.  Buck,  12  Gush.  332.  Under  the  English  statute  (1  Vict. 
0.  26,  §  9),  which  requires  the  will  to  be  signed  by  the  testator  or  by  some 
person  in  his  presence,  and  by  his  direction,  and  the  signature  to  be  made 
or  acknowledged  by  the  testator  in  tlie  presence  of  witnesses,  it  was  held, 
that  a  will  signed  by  a  mark,  witliout  tlie  testator's  name  appearing,  was 
suflBciently  signed,  tlie  will  being  identified  aliunde.  In  re  Bryce,  2  Cur- 
teis,  325.  Where  the  maiden  name  of  tlie  testatrix  was  written  against 
her  mark  instead  of  her  real  name,  by  whioli  she  was  described  in  the  will, 
it  Vjeing  a  clerical  error,  the  will  was  adinitteil  to  probate.  In  the  Goods 
of  Clarkes,  1  Swa.  &  Tr.  22. 

3  Baker  v.  Dening,  8  Adol.  &  Ell.  94. 

«  Stevens  v.  Van  Cleve,  4  Wash.  C.  C.  262. 


20  PROCEEDINCxS   IN   THE   PROBATE   COURTS. 

is  his,  accompanied  with  a  request  that  the  person  to 
whom  the  acknowledgment  is  made  should  attest  it  as  a 
witness,  is  sufficient.  The  acknowledgment  of  his  sig- 
nature need  not  be  in  express  words.  His  declaration 
that  the  instrument  is  his,  his  name  being  then  signed 
to  the  paper,  is  enough  ;  any  form  of  expression  implying 
that  the  will  has  been  signed  by  him  is  sufficient.^  In 
the  case  of  White  v.  The  British  Museum,^  where  the 
will  was  entirely  in  the  testator's  handwriting,  the  tes- 
tator merel}'  requested  the  witnesses  to  attest  it ;  neither 
of  them  saw  his  signature,  and  only  one  of  them  knew 
what  the  instrument  was :  and  the  execution  was  held 
to  be  sufficient.  Tindal,  C.  J.,  said :  "  When  we  find 
the  testator  knew  this  instrument  to  be  his  will ;  that  he 
produced  it  to  the  three  persons,  and  asked  them  to  sign 
the  same  ;  that  he  intended  them  to  sign  it  as  witnesses  ; 
that  they  subscribed  their  names  in  his  presence,  and  re- 
turned the  same  identical  instrument  to  him  ;  we  think 
the  testator  did  acknowledge  in  fact,  though  not  in 
words,  to  the  three  witnesses,  that  the  will  was  his." 
This  acknowledgment  need  not  be  made  to  all  the  wit- 
nesses at  the  same  time,  but  is  sufficient  if  made 
separately  to  each  witness  at  different  times  and  places.^ 
No  formal  publication  of  the  will  by  the  testator  is 
necessary.  In  a  large  majority  of  cases,  the  testator 
declares  in  the  presence  of  the  subscribing  witnesses 
that  the  instrument  executed  by  him  is  his  will,  and  the 
fact  that  such  a  declaration  was  made  is  recited  in  the 
attestation  clause  and  proved  in  the  probate  court.    But 

1  Tilden  v.  Tilden,  13  Gray,  110;  Nickerson  v.  Buck,  12  Cush.  332; 
Hogan  V.  Grosvenor,  10  Met.  54  ;  Dewey  v.  Dewey,  1  Met.  349  ;  Hall  v. 
Hall,  17  Pick.  373. 

2  6  Bing.  310 ;  and  see  Wright  v.  "Wright,  7  Bing.  457. 

*  Hogan  V.  Grosvenor,  10  Met.  54 ;  Dewey  v.  Dewey,  1  Met.  349. 


PROBATE   OF  WILLS.  21 

such  declaration  is  not  necessary.  There  may  exist  very 
excellent  reasons  why  the  testator  should  not  wish  to 
disclose,  and  why  the  law  should  not  require  him  to 
disclose,  the  fact  that  he  has  made  a  will  at  all ;  ^  either, 
as  Swinburne  says,  "  because  the  testator  is  afraid  to 
offend  such  persons  as  do  gape  for  greater  bequests  than 
either  they  have  deserved,  or  the  testator  is  willing  to 
bestow  upon  them ;  (lest  they,  peradventure,  under- 
standing thereof  would  not  suffer  him  to  live  in  quiet :) 
or  else  he  should  overmuch  encourage  others,  to  whom 
he  meant  to  be  more  beneficial  than  they  expected ; 
(and  so  give  them  occasion  to  be  more  negligent 
husbands  or  stewards  about  their  own  affairs  than  other- 
wise they  would  have  been  if  they  had  not  expected 
such  a  benefit  at  the  testator's  hands  (or  for  some  other 
considerations)."  ^ 

It  must  of  course  appear  that  the  testator  knew  at  the 
time  he  executed  the  instrument  that  it  was  his  will. 
Such  knowledge,  however,  need  not  ordinarily  be  proved 
by  direct  evidence  ;  it  may  be  inferred  from  the  testator's 
observance  of  the  formalities  of  execution  required  by 
the  statute.  It  wdll  generall}'  be  presumed  on  proof  of 
the  execution  that  he  knew  the  contents  of  the  instru- 
ment. But  if  the  testator  was  incapable  of  reading  from 
blindness,  physical  weakness,  ignorance,  or  other  cause, 
it  is  incumbent  on  the  party  offering  the  will  for  probate 
to  meet  such  facts  by  evidence  that  the  will  was  read  to 
the  testator  previous  to  its  execution,  or  that  the  con- 
tents were  otherwise  known  to  hira.^ 

1  Osborne  v.  Cook,  11  Cush.  632. 

2  Swinburne,  Pt.  1,  §  11.  In  Trimmer  v.  Jackson  (4  Burn's  Eccl.  Law, 
9th  ed.  102),  the  witnesses  were  deceived  by  the  execution,  being  led  to 
believe  that  the  instrument  was  a  deed,  not  a  will  ;  and  it  was  adjudged 
a  sufficient  execution. 

3  Sweet  V.  Boardman,  1  Mass.  202;  Pottcs  v.  Brigham,  10  N.  H.  514; 
2  Greenl.  Ev.  §  075.     See  Gerrish  i;.  Nason,  22  Maine,  438. 


"si  rUOCEEDINGS  IN  THE  PROBATE  COURTS, 

A  will  maj'  be  properly  executed  witliout  a  seal^  none 
being  required  by  statute. 

The  statute  prohibiting-  the  transaction  of  busint'ss  on 
Sunday  does  not  apply  to  the  execution  of  wills,  and  a 
will  executed  on  that  day  is  valid.^ 

Section  II. 

as  to  the  attestation  by  the  witnesses. 

The  subscribing  witnesses  must  subscribe  the  will  in 
the  presence  of  the  testator.^  The  object  of  the  rule  is 
to  enable  him  to  have  ocular  evidence  of  the  identity  of 
the  instrument  wliicli  they  attest.  The  mere  corporal 
presence  of  the  testator  is  not  enough.  He  must  be 
conscious  of  their  act,  and  in  a  position  where  he  can 
see  it.  If,  therefore,  after  he  has  signed  the  "will  and 
before  the  witnesses  have  subscribed  it,  he  falls  into  a 
state  of  insensibility,  their  attestation  is  not  sufficient.^ 
Nor  will  it  be  sufficient  if  they  subscribe  in  a  secret  and 
clandestine  manner,  although  in  the  same  apartment.* 
It  is  not  essential  that  the  testator  actually  see  the  sign- 
ing ;  it  is  enough  if  the  situation  of  the  respective 
parties  be  such  tliat  he  may  see  it,  and  this  is  enough, 
even  if  the  witnesses  subscribe  in  another  room.  Where 
the  testator  lay  in  bed,  and  the  witnesses  went  with  the 
■will  through  a  short  passage  intoanotlier  room,  and  sub- 
scribed their  names  on  a  table  in  th-e  middle  of  that  room, 
both  doors  being  open,  so  that  the  testator  might  have 
seen  them  subscribe  if  he  would,  though  there  was  no 
proof  that  he  did  see  their  act,  the  attestation  was  held 

1  Bennett  v.  Brooks,  9  Allen,  118. 

'^  See  Chase  v.  Kittreilge,  11  Allen,  49. 

3  Kight  V.  Price,  1  Doug.  241. 

*  Longford  v.  Eyre,  1  P.  Wms.  740. 


PROBATE    OP    WILLS.  23 

sufficient.^  A  blind  man  executing  his  will  should  be 
sensible  of  the  presence  of  the  witnesses  through  his 
remaining  senses.^ 

On  the  other  liand,  though  the  witnesses  are  in  the 
same  room  with  the  testator,  it  is  not  enough,  if  his  view 
of  the  proceedings  is  necessarily  obstructed.  Where  the 
testator  was  in  bed  in  a  room  from  one  part  of  which  he 
might,  hy  inclining  his  head  into  the  passage,  have  seen 
the  witnesses  subscribe  the  will,  but  could  not  see  them 
in  the  position  in  which  he  actually  was,  the  attestation 
was  held  not  to  be  good.^  The  cause  of  the  absence  of 
the  witnesses  is  not  material ;  the  effect  is  the  same,  even 
if  the  absence  was  with  the  consent  or  request  of  the  tes- 
tator.'* If  the  witness  subscribes  in  the  testator's  absence 
it  is  not  sufficient,  even  if  he  afterwards  acknowledges 
his  signature  in  the  presence  of  the  testator.^  An  attes- 
tation made  in  the  testator's  room  is  presumed  to  have 
been  made  in  his  presence  until  the  contrary  is  shown ; 
if  not  made  in  the  same  room  it  is  presuAied  not  to  have 
been  made  in  his  presence  until  it  is  shown  to  have  been 
otherwise.^  And  it  will  be  presumed  in  the  absence  of 
evidence  to  the  contrary,  that  the  witnesses  subscribed 
in  the  most  convenient  part  of  the  room,  and  the  posi- 

1  Davy  V.  Smith,  3  Salk.  395.  In  Casson  v.  Dade  (1  Bro.  C.  C.  99), 
the  testatrix,  being  an  invalid,  executed  the  will  when  sitting  in  her  car- 
riage at  the  door  of  her  attorney's  office,  the  witnesses  attending  her  ;  after 
having  seen  the  execution  they  took  the  will  into  the  office  to  subscribe 
their  names,  and  the  carriage  was  put  back  to  the  window,  through  which, 
it  was  sworn  by  a  person  in  the  carriage,  the  testatrix  might  have  seen 
what  passed.  Lord  Tiiurlow  was  of  opinion  that  the  will  was  well  exe- 
cuted. 

2  Reynolds  v.  Reynolds,  1  Speers,  S.  C.  250. 

8  Doe  V.  Manifold,  1  M.  &  S.  29 1 ;  Boldry  v.  Parris,  2  Cush.  433. 
*  Broderick  v.  IJmderick,  1  P.  Wnis.  239. 
6  Chase  v.  Kittredge,  11  Allen,  49. 
6  2  Greenl.  Ev.  §  07». 


24       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

tion  of  a  table,  probable  to  have  been  used,  would  be 
considered. 1 

It  is  not  necessary  to  the  due  execution  of  the  will 
that  the  attesting  witnesses  should  subscribe  in  the 
presence  of  each  other.  A  will  attested  by  three  wit- 
nesses, who  separately  and  at  different  places  subscribe 
their  names,  at  the  request  of  the  testator,  and  in  his 
presence,  is  well  attested.^ 

An  attesting  witness  may  subscribe  by  making  his 
"  mark,"  but  such  manner  of  subscribing  is  never  ad- 
visable and  seldom  necessary.^ 

No  particular  form  of  words  is  necessary  in  the  at- 
testation clause  which  the  witnesses  subscribe,  nor  need 
it  state  the  fact  that  the  witnesses  subscribed  it  in  the 
testator's  presence,  though  the  fact  that  they  did  so  is 
required  to  be  clearly  proved.* 

Section  III. 

AS   TO   THE   COMPETENCY  OF  THE  ATTESTING  WIT- 
NESSES. 

The  object  of  the  statute  in  requiring  every  will  to 
be  attested  and  subscribed  in  the  testator's  presence  by 
three  or  more  competent  witnesses,  is  to  surround  the 
testator,  at  the  time  he  executes  his  will,  with  disinter- 
ested persons,  Avho  may  pi-otect  him  from  frauds  that 
might  otherwise  be  practised  upon  his  infirmity  or  de- 
bility, and  to  ascertain  and  judge  of  his  sanity. 

1  AVincIielsea  v.  Wanuliope,  3  Iluss.  444. 

2  Ildgan  V.  Grosvenor,  10  Met.  54 ;  Dewey  v.  Dewey,  1  Met.  349. 

3  Jack.son  v.  Van  Deusen,  5  Jolins.  144 ;  Doe  v.  Caperton,  9  Carr.  & 
P.  59.  B.  a  witness,  being;  unable  to  write,  A.  anotlier  witness,  at  his  re- 
quest, guided  his  hand.  Held,  that  B.'s  subscription  was  sufficient.  In 
the  Gootls  of  Frith,  1  Swa.  &  Trist.  8. 

*  Eliot  V.  Eliot,  10  Allen,  357  ;  Ela  v.  Edwards,  16  Gray,  91. 


PROBATE   OF   WILLS.  25 

Competent  witnesses  are  persons  who  are  not  dis- 
qualified by  reason  of  interest,  crime,  or  deficiency  of 
understanding.  The  recent  statutes  which  provide  that 
no  person  shall  be  excluded  by  reason  of  crime  or  inter- 
est from  giving  evidence  as  a  witness,  do  not  apply  to 
attesting  witnesses  to  wills.  They  are  expressly  ex- 
cepted, and  their  competency  must  therefore  be  deter- 
mined by  the  rules  previously  in  force. 

It  was  formerly  held,  that  an  attesting  witness  who 
took  a  beneficial  devise  or  legacy  under  the  will  which 
he  attested  was  not  a  competent  witness  to  prove  its 
execution,  but  as  it  was  found  that  to  allow  a  will  to 
be  wholly  defeated  on  account  of  the  existence  of  such 
an  interest  on  the  part  of  a  witness  was  productive  of 
inconvenience  and  injustice,  a  statute^  was  passed  which 
restored  the  competency  of  such  a  witness  by  destroy- 
ing his  interest.  The  devise  or  legacy  to  the  witness 
was  made  void,  and  he  was  admitted  to  testify.  The 
same  rule  is  established  in  this  State,  by  the  statute 
which  provides  that  "  all  beneficial  devises,  legacies, 
and  gifts,  made  or  given  in  any  will  to  a  subscribing 
witness  thereto,  shall  be  wholly  void  unless  there  are 
three  other  competent  subscribing  witnesses  to  the 
same.    - 

A  mere  charge  on  the  lands  of  the  devisor  for  the 
payment  of  debts  will  not  prevent  his  creditors  from 
being  competent  witnesses  to  his  Avill,^  and  a  member 
of  a  corporation  to  which  property  is  given  by  will,  in 
trust  for  charitable  uses,  is  a  competent  attesting  wit- 
ness.* The  executor  named  in  a  will  is  a  competent 
subscribing  witness.^    An  heir  at  law  who  is  disinherited 

1  25  Geo.  n.  c.  6.  2  Gq^.  Sts.  c.  92,  §  10.  3  Ibid. 

*  Loring  v.  Park,  7  Gray,  42. 

6  Wynian  v.  Symnies,  10  Allen,  153. 


26       PROCEEDINGS  IN  TUE  PROBATE  COURTS. 

is  a  competent  Avitness  in  snpport  of  a  will.^  A  wife  is 
not  a  competent  witness  to  her  hnsband's  will,^  or  to  a 
will  which  contains  a  devise  to  him.^ 

A  person  who  has  been  convicted  of  an  infamous 
crime  is  not  a  competent  witness,  such  a  person  being 
considered  as  having  no  regard  for  the  obligations  of  an 
oath.  Certain  crimes  have  been  held  to  be  infamous, 
and  certain  other  offences  have  been  lield  not  to  have  a 
disqualifying  effect.  The  precise  rule  does  not  clearly 
appear  from  the  adjudicated  cases.  "  It  is  probul)ly  the 
true  test  to  inquire  whether  the  crime  shows  in  the  per- 
petrator such  a  depravity  of  character  or  disposition  to 
pervert  the  public  justice  dispensed  in  the  courts,  as 
creates  a  violent  presnm})tion  against  the  trutlifnlness 
of  his  testimony  ;  the  difficulty  being  in  the  application 
of  this  test."  ^  It  has  been  adjudged  "  that  persons  are 
rendered  infamous,  and  therefore  incompetent  to  testify, 
by  having  been  convicted  of  forgery,  perjury,  suborna- 
tion of  perjiuy,  suppression  of  testimony  by  bribery, 
conspiracy  to  procure  the  al)sence  of  a  witness,  or  other 
conspiracy  to  accuse  one  of  a  crime,  barratry,"  ^  hirceny,^ 
and  the  receiving  of  stolen  goods  knowing  them  to  have 
been  stolen.'  But  convictions  for  adultery ,8  for  "  deceit 
in  the  quality  of  provisions,  deceits  by  false  weights  and 
measures,  conspiracy  to  defraud  by  spreading  false 
news,"^  "the  attempt,  not  amounting  to  a  conspiracy, 
to  procure  the  absence  of  a  witness,"  the  keeping  of 
gaming  and  bawdy  houses,  it  seems,  do  not  disqualify. 


10 


1  Wyman  v.  Symmes,  10  Allen,  155.  2  Pcase  v.  Allis,  110  Mass.  157. 
8  Sullivan  r.  Sullivan,  100  Mass.  474.  *  1  Bishop,  Crim.  Law,  §  645. 
8  1  Greenl.  Ev.  §  373.  ^  Commonwealth  v.  Keith,  8  Met.  531. 

^  Commonwealth  1;.  Rogers,  7  Met.  500. 

8  Little  V.  Gibson,  2  Chandler  (N.  II.),  505.     »  1  Greenl.  Ev.  §  373. 
10  1  Bishop,  Crim.  Law,  §  G15. 


PROBATE    OF    WILLS.  27 

The  full  pardon  of  one  convicted  of  an  infamous  crime 
restores  his  competency  as  a  witness ;  but  the  mere  re- 
mission of  his  sentence  does  not.^ 

The  statute  provision  that  the  will  shall  be  attested 
by  competent  witnesses,  refers  to  their  competency  at 
the  time  the}''  subscribe.  If,  after  the  execution  of  the 
will,  and  before  it  is  admitted  to  probate,  either  of  the 
witnesses  become  infamous,  insane,  or  otherwise  dis- 
qualified, the  will  may  be  sustained  by  proof  of  the  hand- 
writing of  those  who  are  thus  rendered  incompetent  to 
testify.  If  the  witnesses  are  competent  at  the  time  they 
attest,  their  subsequent  incompetency,  from  whatever 
cause  it  arises,  will  not  prevent  the  probate  and  allow- 
ance of  the  will,  if  it  is  otherwise  satisfactorily  proved.^ 
It  has  been  held,  that  a  person  under  the  age  of  four- 
teen years  is  presumed  to  be  incompetent,  from  defect 
of  understanding,  to  attest  the  execution  of  a  will,  but 
this  presumption  may  be  rebutted.^ 


Section  IV. 

EXECUTION    OF   CODICILS. 

A  codicil  is  an  addition  or  supplement  to  a  wall.  By 
our  statutes  the  term  "will"  is  construed  to  include 
codicils.^ 

The  formalities  to  be  observed  in  the  execution  of 
codicils  are  the  same  as  are  required  by  statute  in  the 
execution  of  wills.  The  codicil  must  be  in  writing, 
signed  by  the  testator  or  by  some  person  in  his  presence 
and  by  his  express  direction,  and  attested  and  subscribed 

1  Perkins  v.  Stevens,  24  Pick.  277. 

2  Gen.  Sts.  c.  92,  §  6.  »  Carlton  v.  Carlton,  3  Cliamller  (N.  II.),  11. 
♦  Gen.  Sts.  c.  3,  §  7,  cl.  19. 


28  rUOCEEDINGS   IN   THE    PROBATE    COURTS. 

in  his  presence  by  at  least  three  competent  witnesses. 
The  attesting  witnesses  ma}'  be  the  same  persons  who 
subscribed  the  original  will,  or  other  competent  wit- 
nesses. A  will  may  have  several  codicils,  and  each 
must  be  separately  executed. 

A  codicil  duly  attested  may  communicate  the  efficacy 
of  its  attestation  to  an  unattested  will  or  previous  codicil 
so  as  to  render  effectual  any  devise  contained  in  such 
prior  unattested  paper,  when  the  several  instruments 
are  written  on  the  same  paper.  This  may  be  the  effect 
when  the  codicil  does  not  refer  in  terms  to  the  unat- 
tested instrument ;  and  even  when  Avritten  on  a  separate 
paper  if  it  expressly  refers  to  the  original  instrument.^ 

The  effect  of  a  codicil  ratifying,  confirming,  and  re- 
publishing a  will  is  to  give  the  same  force  to  the  will  as 
if  it  had  been  written,  executed,  and  published  at  the 
date  of  the  codicil.^ 

A  codicil  may  have  the  effect  of  impliedl}'  revoking 
the  later  in  date  of  two  wills  by  expressly  referring  to 
and  recognizing  the  prior  one  as  the  actual  will  of  the 
testator.^  A  codicil  will  refer  to  the  latest  of  several 
wills  if  no  express  date  is  named.*  A  will  revoked  by 
implication,  as  by  a  change  in  the  testator's  circum- 
stances, may  be  republished  by  a  codicil  duly  attested.^ 
So  a  will  made  by  a  person  not  of  full  age,  or  of  unsound 
mind,  or  otherwise  incapacitated,  may  be  made  effectual 
by  a  codicil  republishing  the  same  and  duly  executed 
after  the  disability  is  removed.  And  a  will  executed 
b}'  a  person  luider  undue  influence  may  be  made  valid 

1  1  Jarm.  on  Wills  (4th  Am.  ed.),  129. 

2  Brimmer  i;.  Sohier,  1  Cush.  118;  Miles  v.  Boyden,  3  Pick.  216; 
Haven  r.  Forster,  14  Pick.  543 ;  Pratt  v.    Rice,  7  Cush.  212. 

8  Crosbie  v.  Macdonald,  4  Ves.  610.  *  Ibid. 

5  See  1  Jarm.  on  Wills  (4th  Am.  ed.),  207  ;  notes  by  Perkins,  and  cases 
there  cited. 


PROBATE    OP   WILLS.  29 

by  being  confirmed  and  republished  by  a  codicil  subse- 
quently executed,  when  the  testator  is  free  from  such 
influence.^  A  codicil,  by  republishing  a  will,  may  give 
effect  to  a  devise  which  would  otherwise  have  been  void 
on  account  of  the  devisee  being  a  witness  to  the  original 
wilL2 

Section  V. 

AS   TO   THE   testator's    SOUNDNESS    OF   MIND. 

The  right  of  disposing  of  property  by  will  is  limited 
by  the  statute  to  persons  of  sound  mind,  and  the  ques- 
tion raised  by  this  restriction  is  the  one  presented  for 
determination  in  a  majority  of  the  contested  cases. 

To  establish  the  testator's  mental  capacity  it  must 
appear  that  he  possessed  mind  and  memory  sufficient  to 
enable  him  to  understand  the  nature  and  consequences 
of  his  testamentary  act. 

Mere  ability  to  answer  usual  and  familiar  questions  is 
not  enough.  The  testator  must  have  memory.  "  A 
man  in  whom  this  faculty  is  wholly  extinguished  cannot 
be  said  to  possess  an  understanding  to  any  degree  what- 
ever, or  for  any  purpose.  But  his  memory  may  be  very 
imperfect ;  it  may  be  greatly  impaired  by  age  or  disease  ; 
he  may  not  be  able  at  all  times  to  recollect  the  names, 
the  persons,  or  the  families  of  those  with  whom  he  had 
been  intimately  acquainted ;  he  may  at  times  ask  idle 
questions,  and  repeat  those  which  had  before  been  asked 
and  answered,  and  yet  his  understanding  be  sufficiently 
sound  for  many  of  the  ordinary  transactions  of  life.  He 
may  not  have  sufficient  strength  of  memory  and  vigor 
of  intellect  to  make  and  digest  all  the  parts  of  a  contract, 

1  Ibid.     1  Williams  Ex.  (6th  Am.  ed.)  186. 

2  Moorca  v.  White,  6  Johns.  Ch.  376. 


30       PROCEEDINGS  IX  THE  rnOBATE  COURTS. 

and  yet  be  competent  to  direct  the  disposition  of  his 
property  by  will.  This  is  a  subject  whicli  he  may  pos- 
sibly have  often  thought  of;  and  there  is  pvobabl}'^  no 
person  who  has  not  arranged  such  a  disposition  in  his 
mind  before  he  committed  it  to  writing.  The  question 
is  not  so  much  what  was  the  degree  of  memory  possessed 
by  the  testator  as  tliis:  Had  he  a  disposing  memory? 
Was  he  capable  of  recollecting  the  property  he  was 
about  to  bequeath,  the  manner  of  distributing  it,  and 
the  objects  of  his  bounty  ?  To  sum  up  the  whole  in  its 
most  simple  and  intelligible  form,  were  his  mind  and 
memory  sufficiently  sound  to  enable  him  to  know  and 
understand  the  business  in  which  he  was  engaged  at  the 
time  when  he  executed  his  will  ?  "  ^ 

It  is  not  necessary  that  the  testator  should  be  pos- 
sessed of  a  mind  naturall}'  strong,  to  enable  him  to  make 
a  valid  will.  Mere  weakness  of  understanding  is  not  an 
objection,  for  courts  cannot  measure  the  size  of  people's 
understandings  and  capacities.  "  If  a  man,"  says  Swin- 
burne, "  be  of  a  mean  understanding  (neither  of  the 
wise  sort  or  the  foolish),  but  indifferent,  as  it  were  be- 
twixt a  wise  man  and  a  fool,  yea,  though  he  rather  in- 
cline to  the  foolish  sort,  so  that  for  his  dull  capacity  he 
might  worthily  be  termed  gi'ossum  caputs  a  dull  pate,  or 
a  dunce,  such  a  one  is  not  prohibited  from  making  his 
testament."  ^ 

In  a  large  proportion  of  the  cases  in  which  the  sanity 
of  testators  is  made  a  question,  the  alleged  want  of 
capacity  is  in  the  decay  of  the  faculties  resulting  from 
old  age,  or  the  effect  of    disease,   or  both  combined. 

1  "Wasliington,  J.,  in  Stevens  v.  Vancleve,  4  Wash.  C  C.  262 ;  and  see 
Hathorne  ".  King,  8  Mass.  371 ;  Converse  v.  Converse,  21  Vt.  168;  Kinne 
V.  Kinne,  9  Conn.  105:  Stewart  v.  Lispenard,  26  Wend.  253. 

2  Swinburne  on  Wills,  Pt.  2,  §  4. 


PROBATE    OF    WILLS.  31 

But  neither  extreme  old  age,  nor  debility  of  body,  will 
affect  the  capacity  to  make  a  will,  provided  the  testator 
possesses  the  sound  mind  necessary  to  the  disposition  of 
his  property.  The  law  looks  only  to  the  competency  of 
his  understanding.^ 

EVIDENCE  ON  QUESTIONS   OF   THE   TESTATOE-'S    SANITY. 

The  legal  presumption  in  the  absence  of  evidence  to 
the  contrary  is  in  favor  of  the  testator's  sanity .^  It  was 
formerly  held  that,  the  testator's  sanity  having  been 
testified  to  by  the  attesting  witnesses,  the  burden  shifted 
and  was  upon  the  party  opposing  the  probate  to  show 
that  the  testator  was  not  of  sound  mind ;  but  the  more 
recently  decided  cases  hold  that  the  burden  of  proving 
the  sanity  of  the  testator  is  upon  him  who  offers  the 
will  for  probate,  and  does  not  shift  upon  evidence  of  his 
sanity  being  given  by  the  subscribing  witnesses.^ 

The  subscribing  witnesses  are  regarded  in  law  as  per- 
sons placed  near  the  testator  at  the  time  he  executes  his 
will,  in  order  that  no  fraud  may  be  practised  upon  him 
and  to  judge  of  his  capacity.  They  are  supposed  to  have 
satisfied  themselves  as  to  the  testator's  mental  condition, 

1  In  Van  Alst  v.  Hunter  (5  Johns.  Cli.  148),  the  testator  was  more  than 
ninety  years  old  when  lie  made  his  will.  Chancellor  Kent  said,  "  It  is 
one  of  the  painful  consequences  of  extreme  old  age  that  it  ceases  to  excite 
interest,  and  is  apt  to  be  left  solitary  and  neglected.  The  control  which 
the  law  still  gives  to  a  man  over  the  disposal  of  his  property  is  one  of  the 
most  efficient  means  which  he  has  in  protracted  life  to  command  the  at- 
tentions due  to  his  infirmities."  In  Reed's  Will  (2  B.  Monr.  79),  the  tes- 
tator was  eighty  years  old  and  physically  helpless  from  palsy,  and  his  will 
was  sustained.  In  Jennings  v.  Pendergas  (10  Md.  34G),  a  will  made  by  a 
testatrix  at  the  age  of  ninety-six  was  sustained. 

^  Baxter  v.  Abbott,  7  Gray,  71,  Thomas,  J.,  dissenting. 

3  Crowninshield  i;.  Crowninshield,  2  Gray,  524  ;  Williams  v.  Robinson, 
42  Vt.  658  ;  Gorrish  v.  Nason,  22  Maine,  438;  Delafield  v.  Parish,  25  N.  Y.  9  ; 
Barry  v.  Butlin,  1  Curt.  Eccl.  G38. 


32       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

and  are  therefore  permitted  to  give  their  opinions  upon 
that  point.  They  may  be  inquired  of  as  to  the  grounds 
of  their  opinions  on  cross-examination,  and  other  evidence 
is  admissible  to  support  or  contradict  them.  Any  person 
may  testify  as  to  the  appearance  of  the  testator,  and  to 
facts  from  which  the  state  of  his  mind  may  be  inferred, 
and  medical  experts  may  then  be  inquired  of,  as  to  the 
conclusions  they  draw  from  the  circumstances  and  symp- 
toms proved  to  have  existed. ^  The  mere  opinions  of  wit- 
nesses who  are  not  experts  have  been  held  inadmissible  ;  ^ 
but  in  Baxter  v.  Abbott,*^  it  was  held  that  a  physician  who 
had  practised  many  years  in  the  testator's  neighborhood, 
and  had  at  times  been  his  medical  adviser,  and  who  saw 
and  conversed  with  him  a  short  time  before  the  making 
of  the  will,  was  competent  to  state  his  opinion  of  the 
testator's  sanity,  though  he  was  not  an  expert  on  the 
particular  subject  of  insanity. 

Evidence  of  insanity  both  before  and  after  the  time  of 
making  the  will  is  admissible.*  The  fact  that  the  tes- 
tator committed  suicide  soon  after  making  his  will  may 
be  proved,  but  is  not  conclusive  evidence  of  insanity, 
for  it  is  said  his  power  of  reasoning  on  other  subjects 
may  have  been  wholly  unimpaired.^     The  fact  that  he 

^  Upon  the  trial  of  an  issue  of  the  testator's  sanity,  an  expert,  although 
he  has  heard  all  the  evidence,  is  not  to  be  asked,  "  Suppose  all  the  facts 
stated  by  tlie  witness  to  be  true,  was  the  testator  laborinjj  un<lc'r  an  insane 
delusion,  or  was  he  of  unsound  mind  "?  But  the  facts  upon  which  his  opin- 
ion is  asked,  should  be  p)it  to  him  hypotlietically."  Woodbury  v.  Obear, 
7  Gray,  4G7. 

'■i  Poole  V.  Richardson,  3  Mass.  330 ;  Needham  v.  Ide,  5  Pick.  510;  Com- 
monwealth V.  Fairbanks,  2  Allen,  611. 

3  7  Gray,  71,  and  see  Hastings  v.  Rider,  99  Mass.  622  ;  Lewis  v.  Mason, 
109  Mass.  169. 

*  Dickinson  v.  Barber,  9  Mass.  225. 

*  Brooks  V.  Barrett,  7  Pick.  97.  A  testator  committed  suicide  on  the 
day  next  after  that  on  which  he  made  his  will,  and  the  will  was  established. 
Chambers  v.  Queen's  Proctor,  2  Curteis,  415. 


PROBATE    OF    WILLS.  33 

was  under  guardianship  as  an  insane  person  is  primd 
facie  evidence  of  incapacity,  but  may  be  explained  by 
other  evidence.^  The  testator's  declarations  so  near  the 
time  of  making  the  will  as  to  be  a  part  of  the  res  gestce 
are  admissible,^  and  the  fact  of  his  silence  when  the 
subject  of  his  incapacity  was  talked  of  in  his  hearing 
has  been  allowed  to  be  proved. ^  The  fact  that  the  will 
was  written  by  the  testator  himself  and  is  sensible  in 
its  provisions,  is  the  best  evidence  of  his  capacity,*  but 
a  will  is  not  to  be  invalidated  merely  because  its  pro- 
visions are  imprudent  and  unaccountable.  General 
facts  upon  the  subject  of  insanity,  though  contained  in 
books  of  established  reputation,  are  not  admissible.^ 
The  attestation  of  a  will  is  not  evidence  that  the  wit- 
ness believed  the  testator  to  be  sane.^ 

Evidence  is  admissible  to  show  that  the  testator's 
family,  either  on  his  father's  or  mother's  side,  were 
subject  to  insanity,  or  that  his  parents  or  other  near 
relatives  were  insane.''  The  fact  is  well  established  that 
a  predisposition  to  insanity  is  frequently  transmitted 
from  parent  to  child  through  many  generations.    Accord- 

1  Breed  v.  Pratt,  18  Pick.  115  ;  Stone  v.  Damon,  12  Mass.  488 ;  Hamil- 
ton V.  Ilamilton,  10  U.  I.  5o8. 

2  1  Greenl.  Kv.  §  108;   R<)bln.son  v.  Hutchinson,  26  Vt.  38. 
8  Irish  V.  Smith,  8  Serg.  &  R.  573. 

♦  Overton  v.  Overton,  7  B.  Monr.  61.  See  Davis  v.  Calvert,  5  Gill  & 
Johns.  269. 

*  Commonwealth  y.Wilson,  1  Gray,  337  ;  Ware  v.  Ware,  8  Greenl.  42  ; 
Collier  V.  Simpson,  5  Carr.  &  P.  74. 

^  Baxter  v.  Aljljott,  7  Gray,  71.  On  the  trial  of  an  appeal  from  the 
decree  of  the  probate  court  allowing  a  will,  it  cannot  be  given  in  evidence 
against  the  will  tliat  one  of  the  attesting  witnesses  who  testified  in  the  pro- 
bate court  to  the  testator's  sanity,  anil  has  since  deceased,  declared,  after 
the  probate,  tiiat  he  wished  to  live  to  unsay  what  he  had  said,  and  that 
the  testator  was  insane.     Ibid. 

7  Baxter  v.  Abbott,  7  Gray,  81. 

3 


34  proci:edin(;s  in  the  probate  courts. 

ing  to  Estpiirol,  this  liereditary  taint  is  the  most  common 
of  all  the  cansos  to  wliieli  insanity  can  he  referred,  and 
other  anthorities  assert  that  no  other  canse  can  be 
assigned  for  the  disease  in  a  majority  of  all  the  cases. 
Tlie  disease  may  not  appear  in  a  cliild  who  goes  throngh 
life  without  being  exposed  to  any  exciting  cause,  hut 
\\  ith  such  predis])osition,  insanit}'  supervenes  from  very 
slight  causes.  Hereditary  insanity  is  induced  by  the 
same  exciting  cause  in  the  offspring  as  in  the  parent, 
and  often  apj)ears  about  the  same  age  and  under  the 
same  form.^ 

Evidence  of  merely  eccentric  habits,  together  with  the 
fact  that  the  will  contains  directions  that  appear  absurd, 
will  not  establish  the  fact  of  insanity  ;  ^  and  it  has  been 

'  "  As  we  might  suppose,  children  that  are  born  before  insanity  man- 
ifests itself  in  the  parents,  are  less  subject  to  the  disorder  than  those 
which  are  born  afterwards.  When  one  parent  only  is  insane,  tliere  is 
less  tendency  for  the  predisposition  to  be  transmitted  than  when  both  are 
affected;  but  according  to  Esquirol,  this  predisposition  is  much  more 
readily  transmitted  throujrh  the  female,  than  through  the  male  p.arent. 
Its  transmission  is  also  more  strikingly  remarked  when  it  has  been  ob- 
served to  exist  in  several  generations  of  lineal  ancestors  :  and,  like  other 
hereditary  maladies,  it  ap])ears  to  be  subject  to  atavism  ;  )'.  e.  it  may  dis- 
appear in  one  generation  and  reappear  in  the  next.  Ftirther,  the  children 
of  drunken  parents,  and  of  those  who  have  been  married  late  in  life,  are 
said  to  be  more  subject  to  insanity  than  those  born  under  otiier  circum- 
stances." Taylor's  Med.  Jur.  628.  And  see  1  Beck's  Med.  Jur.  725; 
Ray's  Med.  Jur.  §  72. 

■2  A  will  was  opposed  because  it  bore  intrinsic  evidence  of  the  testa- 
tor's insanity.  After  making  certain  bequests,  the  testator  directed  his 
executors  to  cause  some  part  of  his  bowels  to  be  converted  into  fiddle 
strings,  that  other  parts  should  be  sublimed  into  smelling  salts,  and  that 
the  remainder  of  his  body  should  be  vitrified  into  lenses  for  optical  pur- 
poses. He  afterwards  said,  "  the  world  may  think  this  to  be  done  in  a 
spirit  of  singularity  or  whim."  He  had  expressed  a  wish  to  have  iiis 
body  converted  to  purposes  useful  to  mankind,  and  had  consulteil  a  phy- 
sician in  regard  to  chemical  experiments  to  be  made  upon  it.  It  appeared 
that  he  conducted  his  affairs  with  shrewdness  and  ability,  and  that  he  was 
treated  by  those  wiih  whom  he  dealt  as  a  person  of  indisputable  capacity. 


PROBATE    OF    WILLS.  35 

held  that  the  life,  opinions,  and  habits  of  a  testator  may 
be  reviewed  for  the  purpose  of  testing  the  allegations  of 
insanity.^  "  Monomania  is  very  liable  to  be  confounded 
with  eccentricity ;  but  there  is  this  difference  between 
them  :  in  monomania,  there  is  obviously  a  change  of 
character,  —  the  individual  is  different  to  what  he  was  ; 
in  eccentricity,  such  a  difference  is  not  marked  ;  he  is, 
and  ahvays  has  been,  singular  in  his  ideas  and  actions. 
An  eccentric  man  may  be  convinced  that  what  he  is 
doing  is  absurd,  and  contrary  to  the  general  rules  of 
society',  but  he  professes  to  set  these  at  defiance.  A 
true  monomaniac  cannot  be  convinced  of  his  error,  and 
he  thinks,  that  his  acts  are  consistent  with  reason  and 
the  general  conduct  of  mankind.  In  eccentricity,  there 
is  a  will  to  do  or  not  to  do ;  in  real  monomania,  the  con- 
trolling power  of  the  will  is  lost.  Eccentric  habits  sud- 
denly acquired  are,  however,  presumptive  of  insanity."  ^ 
When  the  alleged  want  of  capacity  is  in  the  weakness 

Sir  Herbert  Jenner,  in  giving  jiulgment,  held  tliat  insanity  was  not  proved, 
that  the  facts  merely  amounted  to  eccentricity,  and  on  this  ground  he 
pronounced  for  the  validity  of  the  will. 

'  J.  W.  G.  made  iiis  will  in  England  a  few  weeks  before  his  death,  in 
which  he  gave  several  legacies,  and  directed  the  remainder  to  be  paid 
over  to  the  Turkish  ambassador  for  the  poor  of  Constantinople,  and  also 
for  the  erection  of  a  cenotapli  in  that  city,  inscribed  witii  his  name,  and 
bearing  a  light  perpetually  burning  therein.  It  appeared  that  he  had 
lived  ]f)ng  in  the  East,  had  studieil  the  Koran  a  great  deal,  and  was  an 
avowed  believer  in  Mahommedanism.  Tlie  prerogative  court,  on  the 
ground  of  this  extraordinary  bequest,  which  sounded  to  folly,  and  on 
parol  evidence  of  the  testator's  wild  and  extravagant  language,  pronounced 
him  of  unsound  mind ;  but  it  was  held,  reversing  that  decision,  tliat  as 
the  insanity  attributed  to  the  deceased  was  not  monomania  but  general 
mental  derangement,  and  as  the  proper  mode  of  testing  the  allegation 
was  to  review  the  life,  habits,  and  opinions  of  the  testator,  on  such  a 
review  there  was  notliing  absurd  or  irrational  in  the  bequest,  or  any  thing 
in  his  conduct,  at  the  date  of  the  will,  indicating  derangement ;  and  there- 
fore the  will  was  admitted  to  probate.     2'.)  Kng.  Law  &  Eq.  38. 

2  Tavior's  Med.  .Jur.  020. 


36       PROCEKDINGS  IN  THE  PROBATE  COURTS. 

and  prostration  of  physical  disease,  an  inquiry  into  the 
character  of  the  testator's  mahidy  will  sometimes  aid  in 
determining  the  question  of  his  soundness  of  mind.  It 
is  well  established  that  different  diseases,  though  equally 
fatal,  exercise  very  unlike  inlluences  upon  the  mental 
faculties.  "  Among  the  diseases  which  incapacitate  an 
individual  from  making  a  valid  will,  or  at  least  render 
his  rationality  doubtful,  may  be  enumerated  the  follow- 
ing :  lethargic  and  comatose  affections.  These  suspend 
the  action  of  the  intellectual  faculties  ;  so  also  does  an 
attack  of  apoplexy  ;  and  even  if  patients  recover  from 
its  first  effects,  an  imbecility  of  mind  is  often  left  which 
unfits  an  individual  from  the  duty  in  question.  Phrenitis, 
delirium  tremens,  and  those  inflammations  which  are  ac- 
companied with  delirium,  also  impair  the  mind.  Finally, 
in  typhoid  fevers,  the  low  state  which  usually  precedes 
death,  is  one  that  may  be  considered  as  incapacitating 
the  individual.  On  the  other  hand,  there  are  many 
fatal  diseases,  in  which  the  patient  preserves  his  mind 
to  the  last,  and  all  dispositions  of  property  made  by  him 
are  of  course  valid.  Of  these,  none  is  more  striking 
than  the  clearness  of  intellect  which  sometimes  attends 
the  last  stages  of  phthisis  pulmonalis."  ^ 

Long-continued  habits  of  intemperance  may  gradually 
impair  the  memory  and  other  faculties,  and  produce  a 
species  of  insanity,  which  will  render  the  person  incapa- 
ble of  making  a  will.  A  person,  however,  who  is 
habitually  addicted  to  the  use  of  intoxicating  liquors, 
and  at  times  violently  excited,  may  make  a  valid  will 
when  he  is  free  from  the  excitement  of  liquor.  It  has 
been  held  that  if  the  testator's  habits  of  intoxication 
are  not  such  as  to  render  him  habitually  incompetent  for 
the  transaction  of  business,  it  is  necessary  for  the  party 

1  Beck's  Med.  Jur.  821.  • 


PROBATE   OF   WILLS.  37 

objecting  to  his  capacity  on  the  ground  of  casual  in- 
toxication to  prove  its  existence  at  the  time  the  will  was 
executed.^  The  que^stion  in  these,  as  in  all  cases  where 
unsoundness  of  mind  is  alleged,  is  whether  the  testator 
knew  and  understood  the  business  in  which  he  was 
engaged  at  the  time  he  executed  his  will. 

The  testator's  declarations  to  the  effect  that  he  was 
induced  to  sign  his  will  when  he  was  under  the  influence 
of  intoxicating  liquors,  are  not  admissible  evidence  of 
the  fact  that  he  was  so  incapacitated. ^ 

Lucid  Intervals.  The  party  supporting  the  will  may 
show  that  the  testator,  although  insane  at  some  period 
of  his  life,  had  recovered  his  reason,  or  that  the  will  was 
made  during  a  temporary  cessation  of  the  insanity. 
Lunatics  occasionally  recover  for  a  time  and  are  con- 
scious of  their  acts.  The  lucid  interval  may  be  a  few 
hours  or  minutes  in  duration,  or  it  may  continue  for 
weeks,  months,  and  even  years.  Evidence  of  a  lucid 
interval  is  to  be  examined  with  great  caution,  especially 
in  cases  where  the  alleged  interval  was  of  brief  duration. 
A  mere  diminution  in  the  violence  of  the  disorder  does 
not  constitute  a  lucid  interval.  It  need  not,  of  course, 
appear  that  the  predisposition  to  the  disease  had  been 
extirpated,  or  that  the  testator  had  regained  the  same 
degree  of  intellectual  ability  that  he  possessed  previous 
to  his  insanity  ;  but  it  must  appear  that  he  was  conscious 
of  his  acts,  and  able  to  understand  their  nature  and 
consequences.^  The  fact  that  the  will  is  a  rational  one 
and  made  in  a  rational  manner,  though  not  conclusive, 
is  strong  evidence  tliat  it  was  made  in  a  lucid  interval.^ 

1  Andrees  i;.  Weller,  2  Green,  Ch.  604. 

2  Gibson  v.  Gibson,  3  Jones  (Missouri),  227. 

»  Gombault  v.  Pub.  Admr.,  4  IJnidf.  (N.  Y.)  220;  Bannatyne  v.  Ban- 
natyne,  14  Eng.  Law  and  Kq.  581 ;  1  Jarm.  on  Wills  (4th  Am.  ed.)  07. 
*  Niciioles  V.  Binns,  1  Swa.  &  Tr.  239. 


38       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

In  establishing  the  fact  of  a  lucid  interval,  evidence 
has  been  admitted  to  show  that  the  disposition  of  the 
testator's  property  made  bv  his  \\\\\  was  consistent  with 
liis  intentions  declared  previous  to  his  insanity.^ 

The  rule  that  insanity  proved  to  have  existed  at  a  par- 
ticular time  is  presumed  to  continue,  does  not  apply  to 
tem})orary  delirium  connected  with  a  violent  disease.- 

Partial  InscDiity —  Monotnania.  The  objection  has 
been  raised  in  some  cases,  that  the  testator,  though  of 
ap})arently  sound  mind  upon  general  subjects,  labored 
under  an  insane  delusion  in  regard  to  particular  matters, 
and  that  such  delusions,  operating  upon  his  mind  at  the 
time  he  made  his  will,  deprived  him  of  his  disposing 
capacity.  Such  delusions  are  said  to  be  more  commonly 
manifested  in  the  testator's  unaccountable  antipathy  to 
his  children  and  near  relatives,  and  unfounded  suspicions 
of  attempts  by  them  on  his  life.  But  to  defeat  a  will  by 
evidence  of  an  insane  tlelusion  merely,  it  has  been  held 
that  the  will  must  be  traced  to,  and  shown  to  be  the 
offspring  of,  such  insane  delusion.^     The  declarations  of 

^  Coughlen's  case,  referreil  to  in  Booth  v.  BlumleU,  1!)  Ves.  508. 

2  Hix  V.  Whittemore,  4  Met.  545. 

"*  In  Greenwood's  case,  tlie  testator  being  sick  and  delirious,  took  gome 
medicine  from  the  hands  of  his  brother  and  imagined  it  was  poison  in- 
tended to  kill  him.  He  recovered  and  returned  to  iiis  profession,  — that 
of  a  barrister,  but  was  never  afterwards  free  from  the  morbid  delusion. 
He  disinherited  his  brother,  who  was  his  only  next  of  kin.  Two  trials 
were  had  on  the  question  of  sustaining  the  will  with  conflicting  verdicts, 
and  the  result  was  a  compromise.  Stated  by  Lord  Eldon  in  White  and 
Wilson,  13  Ves.  80. 

A  testator  who,  twenty-four  years  before  his  death,  had  a  dangerous 
fever,  during  which  he  contracted  a  strong  antipathy  towards  his  brothers, 
which  continued  tlirough  his  life,  made  his  will  siiortly  before  his  death, 
and  disinherited  them.  There  was  no  apparent  cause  for  his  antipatliy. 
Tlie  will  was  set  aside  on  the  ground  that  his  peculiar  defect  of  intellect 
influenced  his  disposition  of  his  estate.  Jolmson  v.  Moore's  Heirs,.!  Little 
(Ky.),  oTl,  and  see  Dew  i-.  Clark,  3  Addams,  79;  Thompson  v.  Thomp- 
son, 1^1  Barb.  (N.  Y.)  107. 


PROBATE   OP    WILLS.  39 

the  testator  proceeding  from  partial  insanity,  are  not 
admissible  as  evidence  of  the  truth  of  his  statements, 
but  may  properlj^  be  considered  in  connection  with  other 
facts  in  determining  the  general  question  as  to  his 
soundness  of  mind.^ 

Section  VI. 

WILLS     INVALIDATED     BY     FRAUD     AND     UNDUE 
INFLUENCE. 

The  testator,  in  order  to  make  a  valid  will,  must  enjoy 
full  liberty  in  the  disposition  of  his  estate.  A  will 
obtained  by  fraud  is  of  course  void,^  and  the  effect  is 
the  same  wdiere  the  testator  is  constrained  by  fear,  or 
where  undue  influence  is  nsed  to  control  the  disposition 
of  his  estate.  An  instrument  executed  under  such  cir- 
cumstances is  not  the  will  of  the  testator,  but  is  the 
dictation  of  another  person.  Any  cojidition  of  things 
that  restrains  the  testator  from  the  free  exercise  of  his 
own  judgment,  incapacitates  liim  as  a  testator. 

Objections  of  this  class  more  frequently  arise  in  cases 
where  the  testator  was  either  of  weak  mind  naturallj^ 
or  was  enfeebled  b}-  age  or  disease,  and  therefore  liable 
to  be  controlled  by  influences  which  would  not  affect  a 
person  of  strong  mind  and  good  health.  A  person  may 
be  of  sound  mind  and  competent,  if  left  to  himself,  to 
make  a  valid  will,  but  he  ma}^  be  induced  by  tlie  harass- 
ing importunities  of  those  about  him,  and  by  the  hope 
of  quiet,  to  dispose  of  his  property  in  a  manner  that  his 
own  healthy  and  unbiased  judgment  would  not  approve. 

1  Woodbury  u.  Ohear,  7  Gray,  467. 

2  1  Jarni.  on  W'ills  (Itli  Am.  ed.)  41  ;  1  Williams  (5lli  Am.  ed.),  40; 
Davis  V.  Calvert,  5  Gill  &  Johiib.  lilj'j  ;  DietriL-k  r.  Dietrick,  5  Serg.  &  K. 
207. 


40       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

A  will  made  under  sueli  eireumstances  is  regarded  as  a 
result  of  coercion,  and  cannot  be  sustained. 

The  degree  of  undue  influence  which  will  invalidate 
a  will  must  vary  with  the  circumstances  of  each  case. 
The  importunity  or  threatening  successfully  employed 
to  coerce  one  person  will  have  no  effect  on  another. 
The  mental  and  physical  condition  of  tlie  testator,  his 
natural  strength  or  feebleness  of  mind,  the  power  and 
disposition  of  the  person  who  seeks  to  control  the  tes- 
tator, and  the  character  of  the  influences  brought  to 
bear  upon  him,  are  to  be  considered.  Honest  sugges- 
tions and  moderate  persuasion  do  not  amount  to  undue 
influence.  To  invalidate  the  will  it  must  appear  that 
the  ill-treatment,  threats,  violence,  or  persistent  impor- 
tunity Avas  such  as  to  destroy  the  free  agency  of  the 
testator.^  In  these  cases,  as  in  all  others,  the  party 
offering  the  will  for  probate  must  prove  the  sanity 
of  the  testator,  but  if  that  fact  is  established,  the 
burden  of  proving  undue  influence  is  upon  the  party 
alleging  it. 

It  has  been  held,  that  the  harmony  of  the  will  with 
the  testator's  disposition  and  affections,  and  his  declara- 
tions in  regard  to  it  when  in  health,  are  facts  to  be  con- 
sidered in  determining  the  question  of  undue  influence.^ 

I  Jarm.  on  Wills  (4th  Am.  eil.).  37  ;  1  Williains  Ex.  (5tl!  Am.  ed.)  40. 

An}'  one  has  a  right  by  fair  argument  or  persuasion,  or  by  virtuous 
influence,  to  iniluce  another  to  make  a  will  in  his  favor.  Jliller  v.  Miller, 
5  Serg.  &  R.  267.  "  Neither  advice,  nor  argument,  nor  persuasion  would 
vitiate  a  will  made  freely  and  from  conviction,  though  such  will  might  not 
have  been  made  but  for  such  advice  or  persuasion."  Clayton,  C.  J.,  in 
Chandler  v.  Ferris,  1  Harr.  454. 

^  Evidence  having  been  introduced  that  the  will  was  procured  to  bo 
made  by  the  undue  influence  of  the  residuary  legatee,  it  was  held  that 
evidence  was  admissible,  on  the  other  side,  that  a  large  i)art  of  the  prop- 
erly of  the  testatrix  was  inherited  by  her  from  her  minor  son,  who  died 
many  years  previous,   and  who  was  greatly  attached  to  the  residuary 


PROBATE   OF   WILLS.  41 

If  it  appears  that  the  will  was  written  or  procured  to  be 
■written  by  a  person  largely  benefited  by  its  provisions,  the 
circumstance  under  which  it  was  made  will  be  more  strictly 
inquired  into.^  Evidence  that  the  testator  was  of  feeble 
mind,  and  believed  in  ghosts  and  supernatural  influences, 
has  some  tendency  to  show  that  weakness  of  mind  which 
would  be  easily  imposed  upon  by  the  exertion  of  undue 
influence.^  Subsequent  declarations  of  the  testator,  to 
the  effect  that  he  had  been  forced  to  sign  his  will,  are 
not  competent  evidence  of  the  fact  that  force  was  used.^ 

Section  VII. 

EEVOCATION   OF   WILLS. 

A  will,  executed  in  accordance  with  the  requirements 
of  the  statute,  is  presumed  to  have  existed  until  the 
death  of  the  testator  ;  but  this  presumption  may  be  re- 
butted by  proof  of  its  revocation.     The   testator  may 

legatee,  and  had  frequently  expressed  his  intention,  if  he  should  attain 
the  age  of  twenty-one  years,  to  leave  the  bulk  of  his  property  to  him, 
and  that  such  intention  was  known  to  the  testatrix.  Glover  v.  Ilayden, 
4  Cush.  580.  See  Allen  v.  Pub.  Admr.  1  Bradf  (N.  Y.)  378;  Waterman 
V.  Whitney,  1  Kernan,  157  ;  Shailer  r.  Bumstead,  99  Mass.  112. 

1  Clark  V.  Fislier,  1  Paige,  171 ;  Darley  v.  Darley,  3  Bradf.  (N.  Y.) 
481 ;  Brydges  v.  King,  1  Hagg.  250 ;  Dodge  v.  March,  1  Hagg.  612. 

-  Woodbury  v.  Obear,  7  Gray,  467.  Evidence  having  been  given  that 
a  devisee  who  was  accused  of  having  made  use  of  undue  influence,  liad 
represented  to  the  testator  that  the  wife  of  one  of  liis  sous  was  an  ex- 
travagant woman,  who  would  waste  any  thing  that  might  be  given  to  her 
husband,  the  opjiosers  of  the  will  were  allowed  to  prove  that  her  general 
behavior  and  character  were  good.  Dietrick  o.  Dietrick,  5  Serg.  &  U. 
207 ;  and  see  Nussear  v.  Arnold,  13  Serg.  &  11.  323. 

When  a  subscribing  witness,  who  is  accused  of  having  been  an  accom- 
plice in  a  fraud  upon  the  testator,  is  dead,  evidence  may  be  given  of  his 
general  good  ciiaracter.  Provis  v.  Reed,  5  Bing.  435  ;  but  not  if  he  is 
living.     Doe  v.  Harris,  7  Carr.  &  P.  330. 

3  Ibid. ;  Jackson  v.  Knilfen,  2  Johns.  31 ;  Smith  v.  Fenner,  1  Gall. 
(K.  I.)  174 ;  Moritz  v.  Brough,  16  Serg.  &  R.  405. 


42       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

revoke  his  will  ;it  his  ])leasuie.  The  manner  of  revoca- 
tion is  pointed  out  by  statute  :  — 

''  No  will  shall  be  revoked,  unless  by  burning,  tearing, 
cancelling,  or  obliterating  the  same,  with  the  intention 
of  revoking  it,  by  the  testator  himself,  or  by  some  person 
in  his  presence  and  by  his  direction;  or  by  some  other 
will,  codicil,  or  writing,  signed,  attested,  and  subseril)ed, 
in  tlie  manner  provided  for  making  a  will ;  but  nothing 
contained  in  this  section  shall  prevent  the  revocation 
implied  by  law  from  subsequent  changes  in  the  con- 
dition or  circumstances  of  the  testator."  ^ 

The  revocation  of  a  will,  therefore,  ma}'  be  either 
express  or  implied.  It  is  expressly  revoked  by  some  act 
of  destruction  done  upon  it  with  the  intention  of  re- 
voking it ;  or  by  a  new  will  or  codicil  intended  as  a 
substitute  for  it,  or  other  writing,  formally  executed 
with  the  express  intention  of  revocation. 

EXPRESS   REVOCATIONS. 

The  mere  physical  act  of  burning,  tearing,  cancelling, 
or  obliterating  a  will,  is  not  of  itself  sufficient  to  con- 
stitute a  revocation.  The  act  must  be  done  with 
the  intention  of  revoking.  If  the  testator  inadvertently 
obliterates  his  will,  it  will  remain  in  force,  notwithstand- 
ing such  obliteration.'-^  So,  if  he  destroys  it  during  a  fit 
of  insanity,  or  if  it  is  destroj'ed  by  his  consent,  given 
after  he  has  become  non  compos;^  or  if  it  is  destroyed 

1  Gen.  Sts.  c.  'J-J,  §  11. 

'  A  will  was  burnt  by  the  testator  on  the  supposition  that  lie  haJ 
substituted  another  for  it,  but  which  was  not  duly  executed.  Probate 
of  a  copy  of  the  first  will  granted.     Scott  v.  Scott,  1  Swa.  &  Trist.  258. 

3  Idley  V.  Bowen,  11  Wend.  227  ;  Ford  v.  Ford,  7  Humph.  92 ;  Scrubly 
V.  Fordham,  1  Add.  74.  The  testator,  to  revoke  a  will,  must  be  at  the 
same  time  competent  to  make  a  will,  or  the  act  of  revocation  will  be  a 
nullity.     Smith  c.  Wait,  4  Barb.  Sup.  Ct.  (N.  Y.)  28.     In  re  Downer,  26 


PROBATE    OF    WILLS.  43 

by  another  person  without  his  knowledge,  it  is  not  re- 
voked.^ 

Burning,  tearing,  &c.,  in  a  slight  degree,  with  a  de- 
clared intent  to  revoke,  is  a  sufficient  revocation. 
Where  the  testator  gave  his  will  "  a  rip "  with  his 
hands,  "  so  as  almost  to  tear  a  bit  off,"  and  then  threw 
it  on  the  fire,  it  was  held  to  be  a  revocation,  though  the 
will  fell  from  the  fire  and  was  preserved,  sliglitly  singed, 
by  another  person,  without  the  testator's  knowledge.^ 
If  the  seal  be  torn  from  his  will  by  the  testator  under 
the  mistaken  impression  that  it  is  an  essential  part  of 
tlie  execution  of  the  instrument,  the  intention  to  re- 
voke being  clear,  it  would  be  a  sufficient  revocation.^ 

A  mere  declaration  of  an  intention  to  revoke  a  will, 
not  accompanied  nor  followed  by  any  act  in  fulfilment 
of  that  intention,  is  of  course  insufficient.*  And  there 
may  be  a  change  of  purpose  that  will  prevent  a  revoca- 
tion, even  when  the  act  of  destruction  is  partly  accom- 
plished. A  testator,  under  the  impulse  of  passion  against 
his  devisee,  tore  his  will  twice  through,  when  his  arms 

Eng.  Law  &  Eq.  GOO.  Tlie  burden  of  proving  that  the  will  was  mutilated 
by  the  testator  when  of  sounil  mind,  is  upon  the  party  alleging  tlie  revo- 
cation.    Harris  v.  Berrall,  1  Swa.  &  Trist.  153. 

'  Onions  r.  Tvrer,  1  P.  Wms.  345  ;  Bennett  v.  Sherrod,  3  Ired.  303 ;  Mid- 
dleton  '•.  Middk'ton,  19  Eng.  Law  &  Eq.  310.  The  fact  that  a  testator,  who 
discovers  such  loss  of  liis  will  neglects  to  make  another,  has  been  held  to  fur- 
nish a  presumption  of  his  intention  to  revoke.  Steele  v.  Price,  5  B.  Monr.  08. 

'^  Bibb  V.  Thomas,  2  W.  Bl.  1043 ;  Doe  v.  Harris,  6  Ad.  &  El.  20'J. 

'  Avery  v.  Pixley,  4  Mass.  400.  A  testator,  being  ill  in  bed,  called 
for  his  will,  and  one  of  the  legatees  named  in  the  will  deceived  him  by 
handing  him  an  old  letter  in  its  stead.  Held  that  if,  from  the  rest  of 
the  testimony  the  jury  believed  that  the  testator  destroyed  that  letter, 
thinking  it  to  be  his  will,  such  circumstances  would  amount  to  a  revo- 
cation.    Pryor  r.  Coggin,  17  Geo.  444. 

*  The  mere  direction  to  another  by  the  testator  to  destroy  his  will  is 
not  sufficient,  unless  some  act  of  destruction  is  thereupon  done.  Giles 
i;.  Giles,  1  Cam.  &  Nor.  174 ;  Ford  v.  Ford,  7  Humph.  'J2. 


44       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

were  seized  by  a  by-st antler,  and  he  became  pacified  by 
the  concessions  of  the  devisee ;  he  tlien  fitted  the  pieces 
of  the  torn  Mill  together  and  remarked,  "  it's  a  good  job 
it  is  no  worse."  This  was  held  to  be  no  revocation.' 
The  declarations  of  the  testator,  accompanying  the  act 
of  revocation,  are  admissible  in  evidence  to  explain  his 
intentions.- 

It  is  to  be  ol)served  that  tlie  statute  requires  the  burn- 
ing, tearing,  cancelling,  or  obHterating  to  be  by  the 
testator  himself,  or  by  some  person  in  his  presence  and 
by  his  direction.  If,  therefore,  the  testator  requests  a 
person  who  has  the  custody  of  his  will  to  destroy  it, 
and  it  is  accordingh^  destroyed,  such  destruction,  if  not 
effected  in  the  testator's  presence,  would  not  be  a  com- 
pliance with  the  terms  of  the  statute. 

If  the  will  is  found  obliterated  in  the  testator's  pos- 
session, the  presumption  is  that  it  was  obliterated  by 
him,  and  the  buixlen  of  proving  the  contrary  is  on  the 
party  offering  it  for  probate ;  but  if  it  has  been  in  the 
possession  of  one  adversely  interested  the  presumption 
does  not  arise.^  If  the  will  is  proved  to  have  been  in 
the  testator's  possession  and  cannot  be  found,  it  will  be 
presumed  that  he  destro^'ed  it  with  tiie  intention  of  re- 
voking it,*  but  if  it  is  traced  out  of  his  custody,  the 
party  asserting  the  revocation  must  show  that  it  came 
again  into  such  custody. 

If  the  testator  executes  his  will  in  duplicate,  retaining 
one  part  and  committing  the  other  to  the   custody  of 

1  Doe  V.  Perks,  5  B.  &  Aid.  489;  Elms  v.  Elms,  1  Swa.  &  Trist.  155. 

2  1  Greenl.  Ev.  §  273 ;  Dan  v.  Brown,  4  Cowen,  490.  As  to  partial 
revocations  by  obliteration,  see  1  Jarm.  on  Wills,  158,  and  cases  tliere 
cited. 

3  Baptist  Cburch  c.  Roberts,  2  B.irr,  10  ;  Bennett  v.  Slierrod,  3  Ircd. 
303  ;  Jones  &  Murphy,  8  Watts  &  Serg.  275. 

*  Davis  V.  Sigourney,  8  Met.  488. 


PROBATE    OF    WILLS.  45 

another  person,  and  then  destroj^s  one  part,  the  inference 
generally  is  that  he  intended  to  revoke  the  will,  but  the 
strength  of  the  presumption  depends  much  on  the  cir- 
cumstances. Thus,  if  he  destroys  the  only  copy  in  his 
possession,  his  intent  to  revoke  is  verj^  strongly  to  be 
presumed ;  if  he  was  possessed  of  both  copies  and 
destroys  but  one,  it  is  weaker ;  and  if  he  alters  one  and 
then  destro3^s  it,  retaining  the  other  entire,  the  pre- 
sumption has  been  said  still  to  hold,  but  weaker  still ; 
but  the  contrary  also  has  been  asserted.^ 

Cases  have  occurred  where  a  will  has  been  revoked 
and  a  codicil  left  entire,  and  the  question  has  thereby 
been  raised  as  to  whether  the  revocation  of  the  will  has 
a  revoking  effect  upon  the  codicil  also.  If,  from  its  con- 
tents, the  codicil  appears  inseparabl}^  connected  with  the 
will,  it  will  be  liekl  to  be  revoked  ;  otherwise,  if  it  is 
independent  of  and  unconnected  with  the  will.^ 

A  will  is  also  expressly  revoked  by  a  new  will  or 
codicil,  inconsistent  in  its  provisions  with  the  original 
will,  or  plainly  intended  as  a  substitute  for  it,^  or  by  a 
writing  which  expressly  declares  an  intention  to  revoke. 
A  subsequent  will  which  makes  a  new  disj)osition  of 
the  whole  estate  is  a  revocation  of  the  first,  without 
any  words  of  revocation  ;  but  if  the  subsequent  will 
contains  no  clause  of  revocation  and  makes  no  disposi- 
tion of  the  estate  inconsistent  with  the  former  will,  it 
does  not  operate  as  a  revocation,  but  both  instruments 
remain  in  force.*     Where  it  appeared  that  the  testator 

1  2  Greenl.  Ev.  §  682. 

2  2  Greenl.  Ev.  §  082.     1  Jarm.  on  Wills  (4th  Am.  ed.),  169. 

'  When  the  intention  of  tlie  testator  to  revoke  his  will  appears  clearly 
from  a  suhsequent  will,  it  is  a  sufficient  revocation,  although  such  subse- 
quent will  is  inoperative  on  account  ot  the  incapacity  of  the  devisee  to 
take  under  it.     Laughton  v.  Atkins,  1  Pick.  645. 

*  Brant  v.  Wilson,  8  Cowen,  6G ;  Nelson  o.  McGiffert,  3  Barb.  Ch.  168. 


46       PROCKEDINGS  IX  TIIR  PROBATE  COURTS. 

made  a  second  will,  the  contents  of  tvhich  were  unknown, 
it  was  lield  not  to  be  a  revocation  of  tlie  first,  because 
it  did  not  appear  either  that  it  contained  a  revocatory 
clause  or  made  a  different  disposition  of  the  estate. 
And  where  it  was  found  that  the  testator  made  a  second 
will  different  from  the  first,  but  it  was  not  found  in  ivhat 
the  difference  consisted^  it  was  held  to  be  no  revocation.' 
The  burden  is  on  the  party  offering  the  second  will  to 
show  that  it  expressly  revokes  the  former  will  or  has 
different  contents  ;  tlie  mere  words  "  this  is  the  last  will 
of  me,"  &c.,  are  not  sufficient  for  that  purpose.'-^ 

If  the  subsequent  instrument,  whetlier  it  be  a  will  or 
codicil,  disposes  of  a  part  of  the  estate  only,  althougli 
it  professes  an  intent  to  dispose  of  the  whole,  it  is  only 
a  revocation  pro  tanto,  unless  it  contains  words  express- 
ing the  intention  to  revoke.'^ 

A  revocatory  writing,  intended  for  the  express  pur- 
pose of  revoking  a  will,  must  be  signed  by  the  testator, 
or  by  some  person  in  his  presence  and  by  his  express  direc- 
tion, and  attested  and  subscribed  in  his  presence  by  three 
or  more  competent  witnesses.  The  manner  of  execution 
is  the  same  prescribed  by  statute  for  the  execution  of  wills. 
If  such  writing  is  made  in  another  State  or  country,  it 
may  be  executed  in  tlie  manner  prescribed  for  the  exe- 
cution of  wills  in  such  other  State  or  country.'*  If  the 
writing  declares  merely  an  intention  to  do  some  future 

1  6  Cruise's  Digest  (Greenleiif),  tit.  38,  c.  6,  §§  11,  14,  and  cases  there 
cited.  Tliis  rule  is  applied,  even  if  it  is  found  that  tlie  second  will  was 
stolen  from  the  testator  or  destroyed  by  fraud.  Ibid.  note.  But  when 
tlie  second  will  is  niissing  parol  evidence  of  its  contents  may  lie  offered. 
2  Greenl.  Ev.  §  688.  But  such  evidence  must  be  strong  and  conclusive. 
Cutto  l:  Gilbert,  29  Eng.  Law  &  Eq.  64. 

-  Cutto  V.  Gilbert,  29  Eng.  Law  &  Eq.  64. 

8  Brant  r.  Wilson,  8  Cowen,  56;  Ilarwood  i'.  Goodright,  Cowp.  87. 

*  Bayley  v.  Bailey,  5  Cush.  245. 


t  » 


PROBATE    OF   WILLS.  47 

act  of  revocation,  it  will  not  amount  to  a  revocation ;  it 
must  be  a  present  actual  revocation} 

IMPLIED   REVOCATIONS. 

Another  class  of  revocations  are  those  implied  by  law 
from  changes  occurring  in  the  condition  and  circum- 
stances of  the  testator  subsequent  to  the  execution  of  his 
will.  Such  revocations  are  founded  on  the  reasonable 
presumption  that  his  will  would  have  been  differently 
made  under  such  different  circumstances.  The  marriage 
of  a  man  will  not  revoke  his  will ;  nor  will  his  will 
made  after  marriage  be  revoked  by  the  birth  of  a  child ; 
but  the  rule  is  established  that  the  concurrence  of 
marriage  arid  the  birth  of  a  child,  after  the  execution  of 
the  will,  works  an  entire  revocation ;  ^  and  tlie  rule 
applies  to  posthumous  children.^  It  has  been  decided 
that  parol  evidence  of  the  intention  of  the  testator,  that 
his  will  should  stand  unrevoked,  is  inadmissible  to  con- 
trol the  presumption  resulting  from  marriage  and  the 
birth  of  children.*  The  rule  does  not  apply  to  cases 
where  it  appears  that  the  changes  in  the  testator's  cir- 
cumstances and  obligations  were  anticipated  and  pro- 
vided for  by  the  will,  as  when  the  will  makes  provision 

1  Brown  v.  Thorndike,  15  Pick.  .388.  Where  the  revocations  proceed 
from  mistake,  or  from  a  false  impression  originating  from  deceit  practised 

"on  the  testator,  it  will  he  void  ;  but  where  the  testator  merely  expresses 
a  doubt  as  to  a  fact,  and  upon  that  doubt  revokes,  the  revocation  would 
seem  to  be  good,     fj  Cruise's  Digest  (Greenl.  ed.),  tit.  38,  c.  6,  §  26. 

•^  Warner  v.  Beach,  4  Gray,  163;  Brush  v.  Wilkins,  4  Johns.  Ch.  506; 
Havens  v.  Vandenbiirg,  1  Denio,  '11. 

2  Doe  V.  Lancashire,  5  T.  K.  49.  It  is  the  same  if  the  testator  died 
without  knowledge  of  the  fact  that  his  wife  was  pregnant.  Christopher 
V.  Christopher,  4  Burrow,  2182;  or  if  tlie  child  died  in  the  testator's  life- 
time.    Wright  I,-.  Netherwood,  2  Salk.  593. 

*  Marston  v.  K<x»,  8  Add.  &  Kl.  14;  Doe  v.  Lancashire,  supra. 


48       PROCEEDINCS  IN  THE  PROBATE  COUUTS. 

for  the  future  wife  and  Issue,^  but  provision  for  the  wife 
only  Ikls  been  liekl  insiiffiuient.-  The  niarriuge  of  a 
feme  sole  has  been  held  to  be  an  absolute  revocation  of 
her  will,  even  though  her  testamentary  capacity  was 
subsequentlv  restored  b}'  the  event  of  her  surviving  her 
husband  ;^  but  on  this  point  doubts  have  been  expressed, 
it  being  questioned  whether  her  marriage  worked  a  rev- 
ocation or  merely  a  suspension. 

An  alteration  in  the  estate  of  lands  devised  by  the 
act  of  the  devisor  may  operate  as  an  implied  revocation 
of  his  will.  A  conveyance  of  the  estate  devised  is  a  rev- 
ocation of  the  devise ;  under  such  circumstances  there 
is  nothing  left  upon  which  the  devise  can  operate.  But 
the  conveyance,  to  effect  an  entire  revocation,  must  be 
of  the  wliole  estate  devised.  If  it  is  of  but 'part  of  the 
estate  it  is  a  revocation  only  to  the  extent  of  the  con- 
veyance.'* The  partition  of  an  estate  between  tenants 
in  common  does  not  operate  as  a  revocation  of  a  prior 
devise  made  by  one  of  the  tenants  of  his  share. 

Entire  revocations  by  implication  of  law  are  limited 
to  a  very  small  number  of  cases.  The  statute  does  not 
intimate  what  changes  in  the  condition  and  circum- 
stances of  the  testator  are  intended  to  work  a  revoca- 
tion, but  leaves  them  to  be  decided  by  the  general  rules 
of  law ;  and  the  reported  cases  furnish  but  little  in- 
formation as  to  the  effect  of  changes  in  the  testator's 
condition  except  as  regards  marriage  and  the  birth  of 
children,  and  alteration  in  the  estate  devised.     It  has 

1  Kennebel  v.  Scrafton,  2  East,  530. 

'^  Marston  v.  Roe,  sn/>ra. 

3  IJarm.  on  Wills  (4tli  Am.  ed.),  150;  1  Wms.  E-x.  (5th  Am.  ed.) 
164. 

*  Hawes  V.  Humphrey,  9  Pick.  350;  Ballard  v.  Carter,  5  Pick.  112. 

For  the  rules  as  to  revocation  by  alteration  of  estate,  see  G  Cruise's 
Digest  (Greenleaf's  ed.),  tit.  38,  c.  6,  §  58  and  seq. 


PROBATE    OF   WILLS.  49 

been  held  that  revocation  cannot  be  implied  from  the 
long-continued  insanity  of  the  testator  from  soon  after 
the  making  of  his  will  until  his  death  ;  ^  nor  from  the 
large  increase  in  value  of  his  property  subsequent  to  the 
making  of  his  will,  although  such  increase  altogether 
changes  the  proportion  between  the  specific  legacies  and 
the  shares  of  the  residuary  legatees.^ 

The  effect  of  a  partial  revocation  by  obliteration,  or 
by  an  alteration  of  the  'estate  devised,  is  not  a  material 
question  in  proceedings  in  the  probate  court.  The 
probate  of  a  will  settles  all  questions  as  to  the  formalities 
of  its  execution  and  the  capacity  of  the  testator,  but 
does  not  affect  the  validity  or  invalidity  of  any  particular 
clause,  or  settle  any  question  of  construction.  A  rev- 
ocation therefore,  which  does  not  wholly  defeat  the 
will  presents  no  question  for  the  probate  court  to  deter- 
mine, and  is  no  bar  to  its  admission  to  probate.^  All 
questions  as  to  the  construction  of  tlie  will  must  be 
settled  by  subsequent  proceedings  in  the  common-law 
courts. 

Section  VIII. 

PROBATE   OF   TVILLS  —  FORIMAL   PROCEEDINGS. 

The  will  to  be  proved  should  be  filed  in  the  probate 
office  of  the  county  of  which  the  deceased  was  an  inhab- 

1  Warner  v.  Beach,  4  Gray,  162. 

2  Ibid.  "  Though  the  testament  be  made  in  time  of  sickness  and  peril 
of  death,  when  the  testator  dotli  not  hope  for  life,  and  afterwards  he  re- 
cover his  healtli,  yet  is  not  the  testament  revokeil  by  such  recovery,  or 
albeit  the  testator  make  his  testament  by  reason  of  some  great  journey, 
yet  it  is  not  revoked  by  his  return."     Swinburne,  Pt.  7,  §  15. 

For  a  general  review  of  the  decided  cases  upon  tiie  subject  of  implied 
revocations,  see  1  Saunders  (Williams),  278,  note. 
'  Hawes  v.  Humphrey,  'J  Pick.  350. 

4 


50  PROCKEDINGS    IN    THE    PROBATE    COURTS. 

itant,  or  in  which  he  was  resident  at  the  time  of  his 
death. ^  With  the  will  there  must  be  filed  a  petition,^ 
signed  l)y  the  executor  or  other  person  who  ojffer.s  the  will 
for  probate,  and  addressed  to  the  judge  of  the  probate 
court,  setting  forth  the  place  where  the  testator  last 
dwelt,  the  date  of  his  death,  the  fact  that  he  left  a  will, 
and  jiraying  that  the  will  be  allowed.  The  full  name 
of  the  widow  of  the  deceased,  if  any,  and  the  names, 
residences,  and  relationshij)  of  nis  heirs-at-law  and  next 
of  kin  should  also  be  stated  in  the  petition.  If  the  next 
of  kin  are  minors,  the  fact  should  be  stated,  and  if  they 
are  under  guardianship,  the  name  and  residence  of  the 
guardian  should  be  given. 

If  the  executor  named  in  the  ^^  ill  declines  the  trust, 
his  renunciation  in  writing  should  be  filed  with  the  will.^ 

NOTICE   TO  PERSONS   INTERESTED. 

Upon  such  petition,  a  citation  is  issued  by  the  register 
of  probate  to  the  heirs-at-law  of  the  deceased,  and  all 
persons  interested  in  his  estate,  to  appear  at  a  day  named 

^  A  person  nnn  rompoa,  born  in  the  county  of  Suffolk,  removed,  upon 
the  death  of  her  fatlier,  into  the  county  of  Miildlesex,  where  she  lived  as 
part  of  iier  brother's  family  many  years  and  until  her  death,  being  for 
the  last  years  of  her  life  under  a  guardian  who  provided  for  lier  support, 
whose  residence  was  in  Suffolk.  Held  that  her  domicile  at  the  time  of 
her  death  was  in  Middlesex,  and  that  letters  of  administration  on  her 
estate  granted  by  the  judge  of  probate  in  Suffolk,  were  void  for  want  of 
jurisdiction.     Holyoke  v.  Ilaskins,  5  Pick.  20. 

Where  a  citizen,  having  liveil  manj-  years  at  W.  in  the  county  of  M., 
purchased  and  furnished  a  house  at  B.  in  the  county  of  S.,  and  after- 
wards with  his  family  spent  his  summers  at  his  liouse  in  W.,  where 
lie  continued  to  paj'  bis  taxes,  and  his  winters  in  B.,  where  he  died, 
it  was  held  that  probate  of  his  will  might  be  taken  in  the  county  of  M. 
Whether  probate  in  the  county  of  S.  would  not  have  been  valid  like- 
wise, qucere.     Harvard  College  v.  Gore,  6  Pick.  370. 

'^  See  Appendi.x,  forms  No.  1-3. 

3  See  Appendix,  form  No.  4. 


PROBATE    OF    WILLS.  51 

and  show  cause,  if  any  they  have,  whj^  the  will  should 
not  be  allowed.  The  statute  provides  no  form  of  serv- 
ing the  citation,  nor  does  it  provide  in  terms  that  any 
notice  shall  be  given.  The  usual  practice  is  to  order 
notice  to  be  given  by  publishing  an  attested  copy  of  the 
citation  in  some  newspaper  printed  in  the  county.  The 
person  presenting  the  will  may  designate  the  paper  in 
which  the  citation  shall  be  published,  but  if  the  judge 
deems  the  paper  so  designated  insufiScient  to  give  due 
publicity,  he  may  order  the  publication  in  one  other 
newspaper. '  The  will  is  not  required  to  be  filed  on  a 
day  when  the  probate  court  is  held,  but  it  may  be  filed 
and  the  citation  issued  on  any  day.  The  party  offering 
the  will  for  probate  must  serve  the  citation  in  accordance 
with  its  terms,  and  must  make  his  return  of  the  fact  of 
service  under  oath,  on  or  before  the  day  fixed  for  the 
hearing. 

Formal  notice  is  dispensed  with  when  the  heirs-at-law 
and  all  persons  interested  in  the  estate  of  the  deceased 
acknowledge  or  waive  notice  of  the  pendency  of  the  pe- 
tition, and  the  judge  is  satisfied  that  no  person  inter- 
ested intends  to  object  to  the  probate  of  the  will.  Such 
acknowledgment  or  waiver  must  be  in  Avriting  and 
signed  by  all  the  heirs-at-law,  and  should  be  annexed  to 
the  petition.^ 

THE    HEARING  —  EVIDEXCE    OF   THE    SUBSCKIBING 
WITNESSES. 

When  it  appears  to  the  court,  by  the  consent  in  writ- 
ing of  the  heirs-at-law  or  other  satisfactory  evidence, 
that  no  person  interested  in  the  estate  intends  to  ol)ject 

'  The  same  rule  applies  to  the  puhlication  of  other  notices  and  cita- 
tions issued  by  the  probate  courts.     Gen.  Sts.  c.  117,  §  2'J. 
^  See  Appendix,  form  No.  2. 


52  PliOCHEDINGS    IN    TUK    PROBATE    COURTS. 

to  the  prol)iite  of  the  will,  the  court  may  grant  probate 
thereof  upon  the  testimony  of  one  onh-  of  the  subscriU- 
iuL;'  witnesses. 1  Uut  if  it  does  not  so  appear,  all  tlu^ 
subscribing  witnesses,  if  they  are  within  the  State,  must 
be  produced  at  the  time  and  })lace  named  in  the  citation. 
If  there  is  a  codicil  to  be  proved,  the  witnesses  who 
attested  it  must  also  be  present.  The  subscribing  wit- 
nesses, being  considered  in  law  as  placed  near  the  testa- 
tor to  ascertain  aiul  jiulge  of  his  capacity,  the  l)arty 
objecting  to  the  probate  of  the  will  has  a  right  to  insist 
upon  the  testimony  of  all  of  them,  if  they  can  be  pro- 
duced.2  Every  clerk  of  a  court  of  record,  and  every 
justice  of  the  peace  may  issue  summonses  to  procure  the 
attendance  of  the  witnesses.^ 

If  it  appears  that  a  subscribing  witness  is  dead,  evi- 
dence is  admissible  to  prove  his  handwriting.*  If,  hav- 
ing been  competent  at  the  time  of  his  attestation,  a 
witness  has  since  become  insane,  or  discpialified  b}-  reason 
of  conviction  of  an  infamous  crime,  or  otherwise,  his 
handwriting  ma}-  be  proved  as  if  he  were  dead  ;  but  the 
fact  of  his  incompetency  must  first  be  shown.  If  the 
witness  cannot  be  found  or  resides  out  of  the  State,  his 
handwriting  may  be  proved,  but  it  must  first  appear  that 
a  diligent  search,  satisfactory  to  the  court  under  the  cir- 
cumstances, has  been  made  for  him.  An  indifferent 
inquiry,  that  leaves  the  matter  in  doubt,  is  not  sufficient 
to  let  in  secondary  evidence  of  his  attestation.  In  ac- 
counting for  the  absence  of  such  a  witness,  answers  to 
inquiries  made  of  persons  supposed  to  be  able  to  give 

1  Gen.  Sts.  c.  02,  §  19.  2  chase  v.  Lincoln,  3  Mass.  326. 

'  See  Appendix,  form  No.  5. 

*  Nickerson  v.  Buck,  12  Cush.  332 ;  Dean  v.  Dean's  Heirs,  1  Williams 
(Vt.),  746 ;  Jackson  v.  Luquere,  5  Cowen,  221 ;  Jackson  v.  Le  Grange,  19 
Johns.  386. 


PROBATE   OF    WILLS.  53 

information  of  him  may  be  given  in  evidence.^  If  an 
attesting  witness  who  made  his  mark  is  dead,  his  mark 
must  be  proved  to  be  his,  and  for  this  purpose  evidence 
is  admissible  to  show  that  the  witness  lived  near  the 
testator,  that  he  could  not  write,  and  that  no  other  per- 
son of  the  same  name  lived  in  the  same  neighborhood, 
and  this  evidence  has  been  held  sufficient  to  prove  the 
attestation .2  Proof  of  the  handwriting  of  a  deceased 
attesting  witness  is  prima  facie  evidence  that  he  duly 
and  properl}'-  attested  the  will  ;  ^  but  the  fact  that  he 
attested  the  will  is  not  evidence  that  he  believed  the 
testator  to  be  sane.*  Where  all  the  witnesses  were  dead, 
and  no  proof  of  their  handwriting  could  be  found,  proof 
of  the  testator's  handwriting  was  received  as  sufficient.^ 
It  sometimes  occurs,  particularly  where  the  will  has 
been  made  many  years  before  it  is  offered  for  probate, 
that  an  attesting  witness  does  not  retain  a  clear  recollec- 
tion of  the  circumstances  attending  the  execution  of  the 
instrument,  and  in  such  cases  less  strictness  of  proof  is 
sometimes  required.  In  Dewey  v.  Dewey ,^  one  of  the 
witnesses  testified  that  his  name,  which  was  upon  the 
^^'ill,  apj^eared  to  be  his  signature,  but  that  he  recollected 

1  Greenl.  Ev.  §  574. 

2  Doe  V.  Capeterton,  9  Carr.  &  P.  59.  In  this  case  the  will  was  attested 
by  the  signature  of  V.  and  tlie  marks  of  Charles  and  Mary  Drinkwater, 
and  all  were  dead.  V.'s  handwriting  was  proved,  and  Marj'  Drinkwater 
testified  :  "  I  am  the  daughter  of  Cliarles  and  Mary  Drinkwater  ;  they 
are  both  dead  ;  they  lived  near  the  testator  ;  my  motlier  coidd  not  write, 
and  my  father  wrote  his  name  only  ;  no  other  Charles  Drinkwater  and  no 
other  Mary  Drinkwater  lived  anywhere  in  that  neighborhood."  Tiie 
evidence  was  held  sufficient.  In  Jackson  v.  Van  Dusen,  the  witness 
made  his  initials,  which  were  proved.     5  Johns.  144. 

'*  Nickerson  v.  Buck,  12  Cush.  332.       *  Baxter  v.  Abbott,  7  Gray,  71. 

*  Duncan  v.  Beard,  2  Nott  &  McCord,  401).  Experts  may  testify  to 
their  opinion  of  the  genuineness  of  the  testator's  signature,  and  ma}'  give 
their  reasons  for  such  opinion.     Demerritt  v.  Kandall,  IIG  JMass.  331. 

«  1  Met.  34'J. 


54  PROCEEDINGS    IN    TIIH    IMIOBATE    COURTS. 

nothing  about  it.  One  of  the  other  witnesses  testified 
that  the  first  witness  did  suhscribe  in  the  testator's 
presence,  and  this  was  lield  siifiicient.  Dewe)',  J.,  said  : 
*'  The  qiU'stiDU  is  not,  whi'lher  this  witness  now  recol- 
lects the  ciruiunstance  of  the  attestation,  anil  can  state 
it  as  a  matter  within  his  meinorv.  If  this  were  requisite, 
the  validity  of  a  will  would  deiieiid,  not  upon  the  fact 
M'hether  it  was  duly  executed,  but  whether  the  testator 
had  been  fortunate  in  securing  witnesses  of  retentive 
memories.  The  real  (question  is,  whether  the  witness 
did  in  fact  properly  attest  it."  '  In  the  absence  of  evi- 
dence to  the  contrary,  it  has  been  presumed  from  the 
fact  of  attestation  that  the  requisites  of  the  statute  have 
been  complied  with.^ 

If  a  subscribing  witness  should  deny  the  execution  of 
the  will,  he  may  be  contradicted  as  to  that  fact  by 
another  subscribing  witness  ;  and  even  if  they  should 
all  swear  that  the  will  was  not  duly  executed,  the  party 
offering  the  will  would  be  allowed  to  go  into  circum- 
stantial evidence  to  prove  its  due  execution.  But  where 
the  attesting  witnesses  so  deny  their  attestation,  the  evi- 
dence, to  give  effect  to  the  will,  must  be  very  clear.^ 
And  where  a  witness  has  sworn  that  the  testator  was 
not  of  sound  mind,  his  testimony  has  been  successfully 
met  by  the  evidence  of  other  persons ;  and  wills  have 
been  established  notwithstanding  the  adverse  testimony 
of  all  the  suljscribing  witnesses.* 

1  Two  of  the  tliree  witnesses  of  a  will  nearly  thirty  years  old,  were 
dead,  and  their  si<5natures  were  proved ;  the  third  recognized  his  signa- 
ture, but  had  no  recollection  of  the  transaction.  The  will  was  allowed. 
Verdier  ;,'.  Verdier,  8  Rich.  (S.  C.)  loo. 

2  Clark  V.  Duiincvant,  10  Leigh,  13. 

3  See  Jackson  v.  Christman,  4  AVend.  282  ;  Handy  v.  The  State,  7  Ilarr. 
&  John.  42. 

*  IJarni.on  'Wills  (4th  Am.  ed.),  77;  Kinliside  v.  Harrison,  2  Phill. 
449;  Le   Breton  v.  Fletcher,  2  Hagg.  568;  Landon  v.  Howard's  Will,  2 


PROBATE   OP   WILLS.  55 

The  due  execution  of  the  instrument  and  the  testa- 
mentary capacity  of  the  testator  having  been  establis^hed 
by  the  party  offering  the  will  for  probate,  the  burden  is 
upon  the  persons  opposing  the  probate  to  sustain  their 
objections.  The  rules  observed  as  to  the  usual  defences 
of  fraud,  undue  influence,  and  revocation  have  been  con- 
sidered in  previous  sections  of  this  chapter. 

No  particular  form  of  words  is  necessary  to  constitute 
a  valid  will.  It  may  be  admitted  to  probate,  however 
inartificial  it  may  be  in  expression,  provided  it  bears  the 
character  and  is  executed  according  to  the  requisites  of 
a  will.  A  valid  testamentary  paper  nia^'  be  in  the  form 
of  a  deed  or  a  letter.^ 

A  codicil  written  on  a  separate  paper,  not  known  to 
the  parties  to  be  in  existence  at  the  time  of  the  probate 
of  the  will,  may  be  subsequently  admitted  to  probate. 
So  may  a  codicil  written  on  the  back  of  the  same  leaf 
on  which  the  will  was  written,  if  such  codicil  escaped 
attention  at  the  time  of  the  original  probate.^ 

Upon  the  allowance  of  the  will,  if  no  appeal  is  taken, 
and  if  there  is  an  executor  named  in  the  will  who  is 
competent  and  willing  to  accept  the  trust,  letters  testa- 
mentary will  issue  to  him  upon  his  giving  a  sufficient 
bond  for  the  faithful  discharge  of  his  trust.  If  there  is 
no  executor  named  in  the  will,  or  if  the  executor  therein 
named  declines  the  trust,  or  is  incompetent,  some  suitable 
person  will  be  appointed  administrator  with  the  will 
annexed.^ 

Addams,  245;  Peebles  v.  Case,  2  Bradf.  (N.  Y.)   226;  Howard's  WiU, 
6  Monr.  199. 

1  Bayley  v.  Bailey,  5  Cusli.  200. 

'^  Waters  ;;.  Stickiiey,  12  Allen,  1. 

*  Ah  to  granting  uilniinistration,  sec  cliap.  v. 


66       PROCEEDINGS  IN  THE  PUOBATE  COURTS. 

Section  IX. 

PKOOF    OF    WILLS   MADE   OUT   OF   THE   STATE. 

A  Avill  m;i(le  out  of  this  State,  wliicli  might  be  proved 
and  allowed  aceording  to  tlie  laws  of  the  State  or  country 
in  which  it  was  made,  may  be  proved,  allowed,  and  re- 
corded in  this  State,  and  will  thereupon  have  the  same 
effect  as  if  it  had  been  executed  according  to  the  laws 
of  this  Commonwealth.^  This  provision  includes  nun- 
cupative wills.2 

In  such  cases  the  same  certainty  of  proof  is  required 
as  when  the  will  is  made  in  this  State,  but  the  particular 
facts  to  be  proved  in  support  of  the  will  must  depend 
upon  the  requirements  of  the  local  laws  of  the  State  or 
country  in  wdiich  the  will  may  have  been  executed. ^ 
It  must  be  proved  that  all  the  formalities  of  execution 
made  necessary  by  the  local  law,  whatever  they  may  be, 
were  duly  observed.  The  rules  as  to  the  testator's 
soundness  of  mind  and  the  "  presence  "  of  the  testator 
are  of  general  application,  and  the  formal  proceedings 
in  probate  court  are  the  same  as  in  cases  of  wills  made 
in  this  State. 

Section  X. 

PROOF    OF   lost   wills. 

A  will,  proved  to  have  been  duly  executed,  wdiich 
cannot  be  found  after  the  testator's  death,  is  presumed 
to  have  been  destroyed  by  him  with  the  intention  of  re- 
voking it,  but  this  presumption  may  be  rebutted   by 

1  Gen.  Sts.  c.  92,  §  8.  -  Slocomb  v.  Slocomb,  13  Allen,  38. 

3  Bayley  v.  Bailey,  5  Cush.  245. 


PROBATE    OF    WILLS.  57 

evidence.^  It  may  be  that  the  will  was  destroyed  by 
the  testator  in  a  fit  of  insanity,  or  that  it  was  lost,  or 
accidentally  or  fraudulently  destroyed.  Such  accidental 
or  fraudulent  destruction  will  not  deprive  parties  of 
their  rights  under  its  provisions,  if  they  can  produce  the 
evidence  necessary  to  establish  the  will. 

The  fact  that  the  will  was  made  by  the  testator  must 
be  proved,  and  it  must  be  shown  that  in  its  execution 
the  provisions  of  the  statute  were  complied  with.  If 
the  fact  of  its  destruction  is  not  clearly  proved,  it  must 
be  shown,  to  the  satisfaction  of  the  court,  that  it  has 
been  lost.  It  must  appear  that  an  honest  and  diligent 
search  has  been  unsuccessfully  made  for  it  in  the  place 
or  places  where  it  was  most  likely  to  be  found,  and 
then  evidence  may  be  admitted  to  prove  its  contents.^ 
If  the  contents  are  proved,  it  can  be  admitted  to  probate. 
But,  in  order  to  establish  a  will  under  such  circum- 
stances, the  whole  contents  must  be  proved,  and  the 
evidence  must  be  strong,  positive,  and  free  from  all 
doubt.^ 

The  party  applying  for  the  probate  of  a  lost  will, 
should  set  forth  in  his  petition  all  the  material  facts  of 
the  case,  and  should  file  with  his  petition  a  paper  con- 
taining the  contents  of  the  will.^ 

1  Davis  V.  Sigourney,  8  Met.  487  ;  Clark  v.  Wright,  3  Pick.  67  ;  Idley 
V.  Bowen,  11  Wend.  227.  "  The  presumption  may  be  repelled,  nor  does 
it  require  evidence  amounting  to  positive  certainty,  but  only  such  as 
rcasiinalilj  produces  moral  conviction."  Sir  John  Nicholl,  in  Davis  r. 
l^avis,  2  Add.  22*5.  The  j)resum])tion  ma}-  be  rebutted  by  jirobable  cir- 
cumstances, among  which  declarations  of  unchanged  affection  and  inten- 
tion have  much  weigiit.     Patten  o.  Poulton,  1  Swa.  &  Trist.  65. 

2  .Jackson  i;.  IJetts,  9  Cowen,  208;  Dan  v.  Brown,  4  Cowen,  483  ; 
Featherly  tJ.  Waggoner,  11  Wend.  5'.}!>. 

3  Davis  V.  Sigourney,  8  Met.  487  ;  Durfee  v.  Durfee,  ibid.  4'JO,  note ; 
Johnson's  Will,  40  Conn.  587. 

*  See  Ai)pen<li.\,  forms  Nos.  G  and  7. 


68  PROCEEDIiNGS    IN    THE    PUOIiATE    COUUTS. 

Section  XI. 

ALLOWANCE  OF  WILLS  PROVED  OUT  OF  THE  STATE. 

The  executor  or  other  person  interested  in  a  will 
proved  and  allowed  in  any  oilier  of  the  United  States, 
or  in  a  foreign  country,  may  produce  a  cojjy  of  the  will 
and  of  the  probate  thereof  duly  authenticated,  to  the 
probate  court  in  any  county  in  which  there  is  any  estate, 
real  or  personal,  on  which  the  will  may  operate.'  With 
the  autht'uticated  copy  of  the  will  should  be  presented 
a  petition  in  writing,  signed  b}^  the  person  presenting 
the  will,  setting  forth  the  place  of  the  testator's  last 
residence,  the  facts  that  his  will  has  been  duly  proved 
and  allowed  in  such  other  State  or  country  by  the  court 
having  jurisdiction  of  the  case,  that  there  is  estate,  real 
or  personal,  in  the  county  in  which  the  petition  is  pre- 
sented, upon  which  the  will  may  operate,  and  praying 
that  it  may  be  filed  and  recorded. 

Upon  such  petition,  the  statute  requires  the  court  to 
assign  a  time  and  place  for  hearing  the  same,  and  to  or- 
der notice  to  all  persons  interested  to  be  given  in  some 
newspaper  three  weeks  successively,  the  first  publication 
to  be  thirty  days  at  least  before  the  time  assigned. 

Sucii  notice  having  been  given,  if  it  a])pcars  upon  the 
hearing  at  the  time  assigned,  that  the  inslriiment  ought 
to  be  allowed  in  this  State  as  the  last  will  and  testament 
of  the  deceased,  the  court  orders  the  copy  to  be  filed 
and  recorded,  and  the  will  then  has  the  same  effect  as  if 
it  had  been  originally  proved  and  allowed  in  this  State. ^ 
After  the  will  is  so  allowed  and  ordered  to  be  recorded, 
the  court  grants  letters  testamentary,  or  of  administra- 
tion with  the  will  annexed,  as  the  circumstances  of  the 

1  Gen.  Sts.  c.  92,  §  2L  -  Parker  v.  Parker,  11  Cusli.  519. 


PROBATE    OF    WILLS.  59 

case  may  require,  and  proceeds  to  the  settlement  of  the 
estate  that  may  be  found  in  this  State.' 

In  cases  of  this  kind  no  evidence  of  tlie  execution  of 
the  will  or  of  the  sanit}'  of  the  testator  is  required  to  be 
produced.  The  co2)y  of  the  will,  and  of  the  decree  of 
the  court  in  which  the  will  was  originally  proved,  if 
properly  authenticated,  is  conclusive,  in  the  absence  of 
any  allegations  of  fraud,  as  to  all  the  facts  necessary  to 
the  establishment  of  the  will,  and  as  to  the  regularity 
of  the  proceedings  and  their  conformity  to  the  law  of 
the  State  or  country  in  which  the  will  was  originally 
proved.^  The  usual  questions  to  be  determined  are, 
whether  the  record  presented  is  duly  authenticated, 
whether  the  court  in  which  the  will  purports  to  have 
been  proved  had  jurisdiction,  and  whether  there  is  any 
real  or  personal  estate  in  the  county  on  which  the  will 
may  operate. 

Section  XII. 

PROOF   OF   NUNCUPATIVE   WILLS. 

A  nuncupative  will  is  a  verbal  disposition  of  the  tes- 
tator's personal  estate,  to  take  effect  after  his  death. 
The  statute  provides  that  "  a  soldier  in  actual  military 
service,  or  a  mariner  at  sea,  may  dispose  of  his  wages 
and  other  personal  estate  by  a  nuncupative  will,  as  he 
might  heretofore  have  done."  The  same  provision  was 
contained  in  the  revised  statutes  (1836),  and  is  the  only 
provision  relating  to  nuncupative  wills  in  the  statutes  of 
this  State. 

Previous  to  the  revised  statutes  any  person,  being  in 
his  last  sickness,  miglit  <lis])Ose  of  his  personal  estate  by 
a  nuncupative  will,  and  the  manner  of  making  and  estab- 

J   Gen.  Sts.  c.  'J2,  §  •j:5.  2  Crippen  v.  Dexter,  l:]  Gray,  330. 


60  rUOCP^EDINGS    IN    THE    PROHATE    COURTS. 

lishing  such  a  will  was  prescribed  at  length  by  statute 
(1788,  c.  24).  That  statute,  however,  did  not  apply  the 
term  "  nuiuupative  "  to  the  testamentary  dispositions  of 
soldiers  and  mariners,  but  provided  that  they  might  dis- 
pose of  their  personal  estate  as  they  might  have  done 
before  the  passage  of  that  act.  The  same  exception  was 
made  in  the  provincial  act,  4  W.  &  M.  c.  3  ;  and  the 
statute  of  fiauds  (29  Car.  II.  c.  3),  which  particularly 
prescribed  the  manner  of  making  and  j)roving  nuncui)a- 
tive  wills,  provided  that  soldiers  and  sailors  might  dis- 
pose of  their  personal  property  as  the}'  had  i»reviuusly 
done.  The  distinction  between  nuncupative  wills,  and 
the  unwritten  wills  of  soldiers  and  sailors,  was  recognized 
at  a  very  remote  period.  The  unwritten  wills  of  sol- 
diers were  denominated  military  wills,  and  other  verbal 
testaments  nuncupative  wills.^  The  revised  statutes  of 
this  State  applied  the  term  nuncupative  to  the  wills  of 
soldiers  and  mariners,  but  expressly  reserved  their  pre- 
viously existing  rights  as  to  their  testamentary  disposi- 
tions. It  has  been  held  accordingly  in  this  State,  and 
in  other  States  where  a  similar  provision  of  statute  ex- 
ists, that  the  rule  governing  the  only  unwritten  wills 
now  recosfnized,  is  the  common  law  as  it  stood  before 
the  passage  of  the  statute  of  frauds.^  The  wills  of  sea- 
men have  been  held  to  come  within  the  reason  and  the 
rule  of  military  testaments.^ 

•  Swinburne,  Pt.  1,  §§  12,  14. 

2  In  the  Goods  of  Arthur  White,  22  Law  Eep.  110;  Hubbard  >:  Hub- 
bard, 4  Selden,  196. 

■^  It  has  been  held  that  the  purser  of  a  man-of-war  is  witliin  tiiis  de- 
scription, and  that  it  inchides  tlie  wliole  service,  applying  equally  to  supe- 
rior officers  up  to  the  commander-in-eliief  as  to  a  common  seaman,  being 
at  sea.  lu  re  Hays,  2  Curt.  338.  And  it  has  been  held  to  apply  to  mer- 
chant seamen.  Euston  v.  Seymour,  cited  2  Curt.  33'.).  A  cook  on  board 
a  mercliant  ship  is  a  mariner.     Ex  parte  Thompson,  4  Bradf.  (N.  Y.)  ItiO. 


PROBATE    OF    WILLS.  61 

Althongli  no  form  of  words  is  needed  to  constitute  a 
good  nuncupative  will,  it  is  veiy  necessarj"  that  the  tes- 
tator's declarations  should  plainl}'  express  his  intentions- 
Swinburne  says  :  "  As  for  any  precise  form  of  words, 
none  is  required,  neither  is  it  material  whether  the  tes- 
tator do  speak  properly,  or  unproperly,  so  that  his  mean- 
ing do  appear."  "  And  although  in  written  testaments 
it  be  also  required  that  the  words  and  sentences  be  such 
as  thereby  the  testator's  meaning  may  appear  ;  yet  more 
specially  is  it  required  in  a  nuncupative  testament,  for 
more  supply  may  be  made  in  written  testaments  than 
can  be  made  in  nuncupative  testaments,  concerning  the 
testator's  meaning."  ^  Nuncupative  wills  may  be  made 
not  only  by  the  proper  motions  of  the  testator,  but  also 
in  answer  to  the  interrogation  of  other  persons.^ 

To  prove  a  nuncupative  will,  it  must  appear  that  the 
testator  was  either  a  soldier  in  actual  military  service,  or 
a  mariner  at  sea,  at  the  time  when  he  made  his  testa- 
mentary declarations.  The  English  courts  have  held 
that  the  privilege  does  not  extend  to  soldiers  quartered 
in  barracks,  either  at  home  or  abroad,  but  that  the  sol- 

1  Part  4,  §  29. 

2  Swinburne,  Pt.  1,  §  12.  While  in  liis  last  sickness,  and  about  an  hour 
before  he  died,  being  of  sound  mind,  on  being  asked  as  to  the  disposition 
of  his  property,  the  testator  said  in  the  presence  of  several  witnesses,  that 
he  "  wished  his  wife  to  have  all  his  personal  property."  Beckwith,  the 
mate  of  the  vessel,  then  asked  him,  if  he  wished  her  to  have  all  his  real 
property,  and  he  re[)lied,  "  yes,  all."  He  was  then  asked  if  lie  had  no 
will,  and  he  replied  that  he  had  had  one,  but  it  was  destroyed.  He  was 
then  asked  by  B.,  what  he  should  tell  his  wife,  and  he  replied,  "  tell  her 
I  loved  her  till  the  end."  He  was  subsequently  asked  by  B.  who  he 
wanted  to  settle  his  affairs,  and  he  answered,  "  I  want  you  to  doit."  He 
did  not  ask  any  one  to  bear  witness  that  what  he  stated  was  his  will. 
These  conversations  were  proved  by  four  witnesses.  It  was  held  that 
they  constituted  a  good  nuncupative  will,  and  that  the  evidence  was  suf- 
ficient to  show  that  the  testator  intended  to  make  B.  his  executor.  Hub- 
bard v.'  Hubbard,  4  Selden,  196. 


62       PROCEKDINGS  IN  THE  PROBATE  COURTS. 

dior  must  be  engaged  on  an  expedition  attlie  tinie.^  Tn 
behalf  of  seamen,  however,  tlie  rule  has  lieen  carried  to 
the  extreme  limit  of  eonstrnetion.-  The  snbstance  of 
the  testator's  reqnests  or  instructions  must  be  estab- 
lished, and  it  must  be  proved  to  the  satisfaction  of  the 
court  that  the  testator  intended  by  his  declarations  to 
make  a  testamentary  divsposition  of  his  property.  It 
must  appear,  of  course,  that  the  testator  was  of  sound 
mind. 

No  particular  number  of  witnesses  is  required  to  estab- 
lish a  nuncupative  will,  but  every  fact  necessar}^  to  sup- 
port it  should  be  proved  by  the  most  positive  evidence. 
The  great  danger  of  mistake,  particuhirl}-  in  cases  where 
the  testator's  declarations  were  not  reduced  to  writing 
soon  after  they  were  made,  and  the  obvious  facilities  for 
the  fraudulent  setting  up  of  such  wills,  render  it  neces- 
sary that  the  evidence  should  be  subjected  to  the  closest 
scrutiny.  Unless  it  is  miide  morally  certain  that  the 
declarations  proved  contain  tlie  true  substance  and  im- 
port, at  least,  of  the  alleged  nuncupation,  and  embody 
the  testator's  real  testamentary  intentions,  the  will  can- 
not safely  be  allowed.'^ 

The  person  applying  for  the  probate  of  a  nuncupative 
will,  should  set  forth  in  his  petition  the  material  facts  of 

1  Drummond  v.  Parish,  3  Curteis,  522 ;  Wliite  v.  Uipton,  ibid.  818. 

2  A  sailor,  while  the  ship  was  in  a  foreign  harbor,  obtained  leave  to  go 
on  shore,  where  he  was  so  injured  by  an  accident,  that  he  did  not  return 
to  the  ship,  but  died  of  his  injuries  in  a  few  days  after  the  accident.  His 
nuncupative  will  was  held  to  be  the  will  of  a  seaman  "  at  sea,"  though 
he  was  not  on  board  the  vessel  at  the  time.  In  the  Goods  of  Lay,  2 
Curteis,  375. 

3  In  the  probate  court  of  Suffolk  county,  a  nuncupative  will  was 
admitted  to  probate  on  the  testimony  of  one  witness,  who  was  also  a 
legatee  under  the  will ;  the  court  held  that  he  was  not  an  "attesting  wit- 
ness," and  therefore  not  disqualified  by  reason  of  interest.  In  the  Goods 
of  Arthur  White,  22  Law  Reporter,  110. 


PROBATE   OF   WILLS.  63 

tlie  case,  and  the  substance  of  the  testamentary  decla- 
rations of  the  testator.^  The  usual  notice  must  be  given 
before  any  hearing  upon  the  question  of  proving  the  will 
can  be  had.  At  the  hearing,  the  will  is  reduced  to  writ- 
ing in  the  form  in  ^^■hich  it  nia}^  be  established  by  the 
evidence,  and  is  then  admitted  to  probate.^ 

A  nuncupative  will  executed  in  another  State,  accord- 
ing to  the  law  of  that  State,  which  would  not  have  been 
valid  if  made  here,  may  be  proved  in  this  State,  and 
have  the  same  effect  as  if  it  had  been  executed  accord- 
ing to  the  laws  of  this  State.^ 

1  See  Appendix,  forms  Nos.  8  and  9. 

2  The  use  is  to  prove  it  by  witnesses  and  then  to  write  it.  Swinburne, 
Pt.  1,  §  12.  "  Being  after  his  death  proved  by  witnesses  and  put  in  writ- 
ing by  the  ordinary."    Bac.  Abr.  Wills,  D. 

8  Slocotnb  V.  Slocomb,  13  Allen,  38. 


CHAPTER  III. 

DEPOSIT,   CUSTODY,    AND     PROCEEDINGS    IN     CASE     OF 
CONCEALMENT   OF   WILLS. 

A  WILL,  when  executed,  if  the  testator  sees  fit,  maybe 
deposited  in  the  Registry  of  Probate  in  tlie  county  wliere 
he  lives,  for  safe-keeping,  and  the  register,  upon  being 
paid  the  fee  of  one  dolhir,  is  required  to  receive  and 
keep  it,  and  give  a  certificate  of  the  deposit  thereof. 
The  will  so  deposited  must  be  enclosed  in  a  sealed  wrap- 
per, indorsed  with  the  name  of  the  testator,  his  place  of 
residence,  the  day  when,  and  the  person  by  Avhom  it  is 
delivered,  and  may  have  indorsed  thereon  the  name  of 
the  person  to  whom  it  is  to  be  delivered  after  the  testa- 
tor's death. 1 

Such  will,  during  the  lifetime  of  the  testator,  can  be 
delivered  only  to  himself,  or  to  some  person  authorized 
by  him,  by  an  order  in  writing  duly  proved  by  the  oath 
of  a  subscribing  witness  ;  after  his  deatli  it  will  be  de- 
livered to  the  person  named  in  the  indorsement  on  the 
wrapper,  if  there  is  a  ]:)erson  so  named  who  demands  it. 
In  the  mean  time  it  cannot  be  opened  or  read.  If  not 
so  demanded  it  will  be  puldicly  opened  at  the  first  pro- 
bate court  held  after  notice  of  the  testator's  death.  It 
will  then  be  retained  in  the  registry  until  it  is  offered  for 
probate  ;  or  if  the  jurisdiction  of  the  case  belongs  to 
another  court,  it  will  be  dehvered  to  the  executors  or 

1  Gen.  Sts.  c.  92,  §§  12,  13. 


CONCEALMENT    OF    WILLS.  65 

other  persons  entitled  to  its  custody  to  be  presented  for 
probate  in  such  other  court.^ 

The  statute  requires  every  person,  other  than  the  reg- 
ister of  the  probate  court  having  the  custody  of  a  will, 
M'ithin  thirty  days  after  notice  of  the  death  of  the  testa- 
tor, to  deliver  it  into  the  probate  court  which  has  juris- 
diction of  the  case,  or  to  the  executors  named  in  the  will ; 
and  if  without  reasonable  cause  he  neglects  to  do  so 
after  being  duly  cited  for  that  purpose,  he  may  be  com- 
mitted to  the  jail  by  warrant  of  the  court,  there  to  be 
kept  in  close  custody  until  he  so  delivers  the  will ;  and 
he  will  be  further  liable  to  any  party  aggrieved  for  the 
damage  sustained  by  such  neglect.^  In  order  that  such 
a  citation  may  issue,  a  petition  setting  forth  the  facts 
should  be  presented  to  the  court.  Any  person  interested 
may  petition.^ 

Upon  complaint  under  oath  made  to  the  probate  court 
by  a  person  claiming  to  be  interested  in  the  estate  of  a 
person  deceased,  against  any  one  suspected  of  retaining, 
concealing,  or  conspiring  with  others  to  retain  or  conceal 
any  will  or  testamentary  instrument  of  the  deceased, 
the  judge  may  cite  the  suspected  person  to  appear  before 
him  and  be  examined  on  oath  upon  the  matter  of  the 
complaint.*  The  citation  may  be  served  by  an  officer 
qualified  to  serve  civil  process,  or  by  a  private  person. 
If  by  a  private  person,  the  fact  that  service  was  made 
as  ordered  must  be  proved  by  his  affidavit.  The  affida- 
vit may  be  conveniently  indorsed  on  the  citation.^ 

1  Gen.  St8.  c.  92,  §§  14,  15. 

2  Ibid.  c.  92,  §  16;  Stebbins  v.  Lathrop,  4  Pick.  33;  Hill  '.Davis, 
4  Mass.  137.  This  section  applies  to  executors  having  custody  of  a  will 
as  to  other  persons.     Com.  Kep.  1834,  c.  63,  note  ;  Stat.  1875,  c.  lilO. 

3  See  Appendix,  form  No.  10. 

*  Ibid.  Nos.  11,  12.  6  Ibid.  No.  13. 

5 


66       PROCEEDINGS  IN  THE  TROBATE  COURTS. 

If  the  person  cited  refuses  to  appear  and  submit  to 
examination,  or  to  answer  such  interrogatories  as  are 
lawfully  propounded  to  him,  or  to  obey  any  lawful  order, 
the  judge  may  commit  him  to  the  jail,  there  to  remain 
in  close  custody  until  he  submits  to  the  order  of  the 
court. ^  All  such  interrogatories  and  answers  must  be  in 
writing,  and  signed  by  the  party  examined,  and  filed  in 
the  probate  court ;  but  the  j)erson  examined  cannot  be 
required  to  criminate  himself. 

On  such  complaint  the  judge  in  his  discretion  may 
award  costs  to  be  paid  by  either  party,  and  may  issue 
execution  therefor.^ 

The  will,  after  being  admitted  to  probate,  remains 
on  the  files  of  the  probate  office,  except  that,  after  the 
expiration  of  thirty  days  from  the  probate  decree,  upon 
the  petition  of  the  executor,  or  of  any  person  interested 
in  the  estate  of  the  testator,  after  such  notice  thereof  as 
the  court  shall  require  and  hearing  had  thereon,  the 
court  may  permit  the  original  will  to  be  taken  from  the 
files  of  such  court,  if  it  shall  appear  that  such  original 
will  is  necessary  to  be  used  in  any  foreign  country  for 
the  purpose  of  establishing  the  right  or  title  of  such 
executor,  legatee,  or  person  to  the  estate  of  the  testator 
therein,  and  to  use  the  will  for  that  purpose.^ 

1  See  Appendix,  form  No.  14.  -'  Gen.  Sts.  c.  92,  §§  17,  18. 

8  Stat.  1876,  c.  1G5. 


CHAPTER   IV. 

APPOINTMENT   OF   EXECUTORS. 

An  executor  is  the  person  to  whom  the  testator  has 
confided  the  trust  of  administering  his  estate,  according 
to  his  last  will  and  testament.  He  can  derive  his  office 
only  from  a  testamentary  appointment  confirmed  by  a 
decree  of  the  probate  court.  The  appointment  is  gen- 
erally made  by  express  words  contained  in  the  will, 
but  it  may  be  made  constructively  by  other  than  express 
words.  The  form  of  petition  for  the  probate  of  a  will 
in  common  use,  made  by  the  executor  named  in  the  will, 
prays  that  administration  be  granted  to  him  ;  and  when 
the  will  has  been  proved  and  allowed,  letters  testamen- 
tary are  issued  to  him,  provided  that  he  is  legally  com- 
petent for  the  office  and  gives  bond  for  the  discharge  of 
the  trust  as  required  by  law. 

WHO   MAY   BE   EXECUTORS. 

Any  person  may  be  nominated  as  executor,  but  all 
persons  are  not  legally  competent  to  act  in  that  office. 
A  minor  or  an  infant  ventre  sa  mere  may  be  nominated 
in  the  will ;  but  if  at  the  time  of  proving  the  will  the 
executor  named  tlierein  is  not  of  full  age,  administration 
with  the  will  annexed  is  granted  to  some  other  person 
during  his  minority,  unless  there  is  another  executor 
nominated  in  the  will  who  accepts  the  trust,  in  wliich 
case  such  other  executor  administers  until  the   minor 


68  rROCEEDINGS   IN   THE    PROBATE   COURTS. 

arrives  <at  full  age  ;  he  can  then  by  giving  bond  be 
admitted  as  joint  executor.^  If  the  executor  named  in 
the  will  is  i)hysically  or  mentally  incapacitated,  adminis- 
tration is  granted  to  some  other  person.  Any  objection 
that  would  cause  the  removal  of  an  executor  is  sufficient 
to  prevent  the  confirmation  of  his  appointment  by  the 
court.2 

A  married  woman  may  be  an  executrix,  administratrix, 
guardian,  or  trustee,  and  bind  herself  and  the  estate  she 
represents,  without  lier  husband  joining  in  any  convey- 
ance or  instrument  whatever,  and  be  bound  in  the  same 
manner  and  with  the  same  effect  in  all  respects  as  if  she 
■was  sole.^ 

EXECUTORS   TO   GIVE   BOND. 

General  Bond.  The  executor,  before  letters  testa- 
mentary are  issued  to  him,  is  required  to  give  bond  with 
sufficient  surety  or  sureties,  in  such  sum  as  the  judge  of 
the  probate  court  shall  order,  payable  to  the  judge  and 
his  successor,  with  condition  to  return  to  the  probate 
court,  within  three  months,  a  true  inventory  of  the 
estate  of  the  deceased  ;  to  administer  according  to  law 
and  the  will  of  the  testator,  all  the  personal  estate  and 
the  proceeds  of  all  real  estate  sold  for  the  payment  of 
debts  and  legacies  ;  *  and  to  render  upon  oath  a  just  and 
true  account  of  his  administration  within  one  year,  and 
at  any  other  time  when  required  by  the  court.  When 
two  or  more  persons  are  appointed  executors,  none  can 
intermeddle  or  act  as  such  but  those  who  give  bond.^ 

1  Gen.  Sts.  c.  93,  §  7. 

2  As  to  removals,  see  post,  chap.  viii.  '  Stat.  1874,  c.  184. 

*  But  he  may  be  exempted  by  the  court  from  giving  bond  for  the  pro- 
ceeds of  sales  of  real  estate,  except  when  authorized  to  sell  it.  Gen.  Sts. 
c.  101,  §  13. 

8  Gen  Sts.  c.  93,  §  2.     As  to  bonds,  generally,  see  post,  chap.  xix. 


APPOINTMENT   OF   EXECUTORS.  69 

Bond  tvhen  the  Executor  is  Residuary  Legatee.  If  it 
appears  to  the  judge  that  the  bond  above  described  is 
not  necessary  for  the  protection  of  any  person  interested 
in  the  estate,  he  may  permit  an  executor,  wlio  is  residu- 
ary legatee,  instead  of  giving  such  bond,  to  give  a  bond 
with  condition  to  pay  all  debts  and  legacies  of  the  tes- 
tator, and  such  suras  as  may  be  allowed  by  the  probate 
court  for  necessaries  to  the  widow  or  minor  children  ; 
and  in  such  case  he  is  not  required  to  return  an  in- 
ventor}'.^ 

An  executor  therefore,  who  is  residuary  legatee,  may 
give  a  bond  in  the  common  form,  which  requires  him  to 
return  an  inventory  of  the  estate  ;  or  he  may  be  excused 
the  labor  and  expense  of  making  an  inventory  by  giving 
bond  to  pa}^  debts,  legacies,  and  allowances.  It  is  at 
his  own  option  to  give  one  or  the  other.  The  reason  of 
this  indulgence  is,  that  as  he  is  residuary  legatee,  no 
person  can  have  an  interest  in  procuring  evidence  of  the 
assets  except  the  creditors,  legatees,  and  family  of  the 
deceased  ;  and  if  he  binds  himself  to  pay  all  their  claims, 
the  amount  of  the  assets  is  of  no  concern  to  any  person 
excej)t  himself.  But  if  he  chooses  to  bind  himself  to 
pay  the  debts  and  legacies,  he  must  abide  by  the  conse- 
quences of  his  election.  He  must  fulfil  the  condition  of 
his  bond,  whether  the  assets  are  sufficient  for  the  pur- 
pose or  not.  The  condition  of  the  bond  is  not  to  pay  if 
there  are  assets,  Imt  to  pay  at  all  events.  By  giving 
such  a  bond  he  conclusively  admits  assets,  and  the  admis- 
sion will  bind  him  and  his  sureties,  even  if  the  estate 
proves  insolvent.^     If,  on   the  other  hand,  he  gives  a 

1  Gen.  St8.  c.  93,  §  3. 

2  Colwell  V.  Alger,  5  Gray,  67.  In  a  suit  to  recover  a  legacy,  tlie 
plaintitt'  need  not  give  any  proof,  except  sucli  bond,  that  tiie  executor 
lias  atisets  in  his  liamls.     Jones  v.  Hicliarflfon,  5  Met.  'IM. 

A  Ijoml    to  pay  delit-s   and   legacies,  given    by  an   executor  who   is 


70  PROCEEDINGS    IN   THE    PROBATE    COURTS. 

bond  in  the  common  form  and  returns  an  inventory,  he 
will  be  responsible  for  the  assets,  but  no  further.  When 
the  executor  knows  that  the  estate  is  sufficient  to  meet 
all  the  claims  against  it,  with  the  charges  of  administra- 
tion and  tlie  allowances  made  to  the  widow  and  children 
of  the  testator,  he  may  safely  give  a  bond  to  \y.\y  the 
debts  and  legacies ;  but  where  there  is  any  doubt  what- 
ever of  the  sufficienc)'  of  assets,  he  should  give  bond  in 
the  common  form  and  return  an  inventory.^ 

An  administrator  with  tlie  will  annexed  gives  a  bond 
in  like  manner  and  with  like  condition  as  is  required  of 
an  executor.  If  such  administrator  is  residuary  leg- 
atee, the  court  may  permit  him  to  give  a  bond  to  pay 
debts  and  legacies,  with  like  effect,  as  though  he  was 
nominated  executor  in  the  will.^ 

^V^len  no  Sureties  are  required.  Executors  are  ex- 
empted from  giving  a  surety  or  sureties  in  their  bonds, 
when  the  testator  has  ordered  or  requested  such  exemp- 
tion, or  that  no  bond  should  be  taken,  or  when  all  the 
persons  interested  in  tlie  estate  who  are  of  full  age  and 
legal  capacity,  other  tlian  creditors,  certify  to  the  court 
their  consent  thereto  ;  but  not  until  all  creditors  of  the 
estate,  and  the  guardian  of  any  minor  interested  therein, 
have  been  notified,  and  had  opportunity  to  show  cause 
against  the  same.^     The  judge,  however,  may,  at  or  be- 

residuary  legatee,  who  has  thus  been  excused  from  returning  an  inven- 
tory witliin  three  months,  cannot,  after  the  expiration  of  a  year  and  a 
lialf,  he  cancelled  or  surrendered  by  tlie  probate  court,  or  supreme  court. 
Alger  V.  Colwell,  2  Gray,  404. 

1  The  giving  of  the  bond  to  pay  debts  and  legacies  does  not  discharge 
the  lien  on  the  real  estate  of  tlie  testator  for  the  payment  of  his  debts, 
except  on  such  part  as  shall  liave  been  sold  by  the  executor  to  a  purchaser 
in  good  faith  and  for  a  valuable  consideration  ;  all  estate  not  so  sold  may 
be  taken  on  execution  by  any  creditor  not  otherwise  satisfied,  in  like  man- 
ner as  if  a  bond  had  been  given  in  the  other  form.     Gen.  Sts.  c.  93,  §  4. 

2  Stat.  1870,  c.  28-5. 

8  Notice  by  publication  in  a  newspaper  is  sufficient.    Wells  v.  Child,  12 


APPOINTMENT   OP   EXECUTORS.  71 

fore  the  granting  of  letters  testamentary,  require  bond 
with  sufficient  surety  or  sureties,  if  he  is  of  opinion  that 
the  same  is  required  by  a  change  in  the  situation  or  cir- 
cumstances of  the  executor,  or  for  other  sufficient  cause. ^ 

Whenever  an  appointment  of  an  executor,  administra- 
tor, guardian,  or  trustee,  shall  be  vacated  or  declared 
void  by  reason  of  an}"  irregularity,  or  want  of  jurisdic- 
tion or  authority  of  the  court  making  the  same,  the 
person  so  appointed  such  executor,  administrator,  guar- 
dian, or  trustee,  shall  be  held  to  account  for  all  money, 
property,  or  assets,  which  shall  have  come  to  his  hands 
as  executor,  administrator,  guardian,  or  trustee,  or  by 
reason  of  such  appointment,  in  the  same  manner  as  if 
the  appointment  had  been  regular  and  valid  ;  arid  any 
bond  given  in  pursuance  of  such  appointment  shall  be 
held  to  be  valid  and  binding,  both  ou  the  principals  and 
sureties,  for  that  purpose. 

Payments  made  to  or  by  such  person  as  executor,  ad- 
ministrator, guardian,  or  trustee,  if  in  other  respects 
properly  made,  may,  with  the  approval  of  the  probate 
court,  be  ratified  and  confirmed  by  the  executor,  admin- 
istrator, guardian,  or  trustee,  who  may  be  afterwards 
legally  appointed.^ 

"  Whenever  the  authority  or  validity  of  any  act  or 
proceeding  of  a  person  acting  as  executor,  administrator, 
guardian,  or  trustee,  shall  be  called  in  question  by  rea- 
son of  any  alleged  irregularity,  defective  notice,  or  want 
of  authority  in  such  person,  any  party  interested  in  or 
affected  by  the  same  may  apply  to  the  probate  court 
having  jurisdiction  of  the  subject-matter  in  respect  to 

Allen,  330.     A  bonil  witliout  surety  api)r(>veil  by  tlie  probate  court,  with- 
out notice  to  creilitors,  is  not  such  a  bond  as  the  statute  requires  ;  and 
the  statute  of  limitations  against  executors  will  not  begin   to  run  from 
the  filing  of  such  a  bond.     Abercrombie  v.  Sheldon,  8  Allen,  532. 
1  Gen.  St8.  c.  93,  §  5.  2  gtat.  1873,  c.  253. 


72  PROCEEDINGS    IN    THE   PROBATE   COURTS. 

which  the  act  or  proceeding  in  question  has  heen  had ; 
and  the  court,  aller  notice  to  all  i)arties  interested,  may 
hear  and  dcterniinc  the  matter,  and  confirm  the  act  or 
proceeding  in  Avhole  or  in  part,  and  authorize  and  em- 
power the  executor,  administrator,  guardian,  or  trustcMi, 
aforesaid,  or  any  successor  or  other  person  \\]h)  may  be 
legally  appointed  to  act  in  the  same  cajjacit}-,  to  ratify 
and  confirm  the  same,  and  to  execute  and  deliver  such 
deeds,  releases,  conveyances,  or  other  mstruraents,  as 
may  he  found  necessary  for  that  purpose,  provided  that 
no  act  or  proceeding  which  the  court  might  not  have 
authorized  in  the  first  instance,  upon  jiroper  a})plication, 
duly  made,  shall  be  so  confirmed  under  any  construction 
or  authority  of  this  act."  ^ 

If  a  person  ap})ointed  executor  refuses  to  accej^t  the 
trust,  or,  after  being  duly  cited  for  that  purpose,  neg- 
lects to  appear  and  accept  the  same,  or  neglects  for 
twenty  days  after  probate  of  the  will  to  give  bond,  let- 
ters testamentary  are  granted  to  the  other  executors,  if 
there  are  any  capable  and  willing  to  accept  the  trust ; 
and  if  there  are  none,  or  if  the  executors  are  dead,  or 
none  are  named  in  the  will,  administration  of  the  estate 
with  the  will  annexed  is  granted  to  such  persons  as 
would  have  been  entitled  thereto  if  the  deceased  had 
died  intestate ;  but  after  the  expiration  of  the  twenty 
days,  and  before  letters  testamentary  or  of  administra- 
tion are  granted,  the  court  may  grant  letters  testamen- 
tary to  any  person  appointed  executor  who  gives  the 
bond  prescribed  by  law.^ 

1  Stat.  1874,  c.  346.  2  Gen.  Sts.  c.  93,  §  6. 


CHAPTER  V. 

APPOINTMENT   OF  ADMINISTRATORS. 

When  a  person  dies,  not  having  disposed  of  his  prop 
erty  by  will,  he  is  said  to  die  intestate,  and  the  law  pre- 
scribes the  manner  in  which  his  estate  may  be  settled, 
and  the  rights  of  all  persons  interested  secured. 

IN  WHAT   CASES   ADMINISTRATION  IS   GRANTED. 

Administration  may  be  granted  by  the  probate  court 
for  each  county  of  the  estates  of  persons  who  at  the 
time  of  their  decease  were  inhabitants  of  or  resident  in 
such  county.^ 

Administration  de  bonis  non.  If  a  sole  administrator 
dies  before  he  completes  the  trust  committed  to  him, 
or  is  removed  by  the  court,  or  resigns,  administration 
de  bonis  non  (of  the  estate  not  administered)  will  be 
granted,  provided  there  is  personal  estate  left  unadmin- 
istered  to  the  amount  of  twenty  dollars,  or  debts  to  that 
amount  are  remaining  due  from  the  estate.^ 

Administration  ivith  the  will  annexed.  In  certain 
cases  administration  is  granted  of  testate  estates  ;  where 
the  testator  omits  to  name  an  executor  in  his  will,  or 
when  the  onl}'-  executor  named  in  the  will  is  dead,  or 
refuses  to  accept  the  trust,  or  after  being  cited  for  that 

1  Gen.  Sts.  c.  117,  §  2.  ■!  Ibi<l.  c.  101,  §  1. 


74  PROCEEDIxNGS   IN   THE    PROBATE    COURTS. 

purpose  does  not  appear,^  or  fails  to  give  bond  for  twenty 
daj's  after  probate  of  the  will,-  or  is  a  minor,*^  or  other- 
wise legally  incompetent.  In  sneh  cases  administration 
with  the  will  annexed  is  granted. 

Administration  de  bonis  non  tvith  the  ivill  annexed. 
When  a  sole  executor  or  administrator  with  the  will  an- 
nexed dies  after  entering  upon  the  duties  of  his  trust 
and  before  it  is  discharged  ;  or  is  removed  by  the  court ; 
or  resigns,  administration  de  bonis  non  with  the  will  an- 
nexed is  granted,  provided  there  is  personal  estate  not 
administered  to  the  amount  of  twenty  dollars,  or  debts 
to  that  amount  are  remaining  due  from  the  estate,  or 
that  there  is  any  thing  remaining  to  be  perftirnicd  in 
execution  of  the  will.'* 

Special  Administration.  At  any  time  and  place,  the 
judge  of  a  probate  court,  having  jurisdiction  of  the 
matter,  may,  in  his  discretion,  appoint  a  special  admin- 
istrator to  collect  and  preserve  the  effects  and  estate  of 
a  deceased  person,  and  deliver  the  same  to  whoever 
shall  be  ap2")ointed  administrator,  or  other  person  enti- 
tled thereto.^ 

Ancillary  Administration.  When  a  citizen  of  another 
State  or  country  dies  leaving  estate  to  be  administered 
in  this  State,  administration  of  such  estate  may  be 
granted  here.^    In  such  case,  the  administration  granted 

1  Gen.  Sts.  c.  93,  §  6.  2  ibid.  3  ibid.  §  7. 

«  Ibid.  c.  101,  §  1.  ^  Stat.  187G,  c.  200. 

•>  A  debt  due  the  deceased  from  an  inhabitant  of  this  State  is  estate 
that  may  be  administered  licre.  Piquet,  appellant,  5  Pick.  65;  Emery  v. 
HiMreth,  2  Gray,  231.  So  are  articles  of  furniture  and  plate,  though  of 
small  value ;  any  thinjj  corresponding  to  huua  nutahilia  in  England  would 
be  sufficient  for  that  purpose.  Harrington  v.  Brown,  5  Pick.  521.  When 
a  debtor  takes  up  liis  residence  in  this  State,  after  the  death  of  the  cred- 
itor in  another  State,  administration  on  the  creditor's  estate  will  be 
granted  in  tliis  State ;  and  so  when  goods  are  brought  into  this  State. 


APPOINTMENT   OP   ADMINISTRATORS.  75 

here  is  treated  as  merely  ancillary  or  auxiliary  to  the 
principal  administration  granted  in  the  jurisdiction  where 
the  deceased  dwelt.  The  appointment,  however,  of  an 
administrator  in  the  State  where  the  deceased  had  his 
domicile  is  not  a  necessary  prerequisite  to  the  granting 
of  such  ancillary  administration ;  but  administration  of 
the  estate  in  this  State  may  be  granted,  although  no 
administrator  has  been  appointed  in  the  foreign  State; 
and  even  if  the  deceased  left  a  will,  which  has  never  been 
offered  for  probate  in  the  place  of  his  domicile.^ 


WITHIN     WHAT     TIME     ADMINISTRATION     MUST     BE 
APPLIED     FOR. 

Administration  is  not  originally  granted,  after  the  ex- 
piration of  twenty  years  from  the  death  of  the  intestate, 
except  when  property  accrues  to  the  estate,  or  belonging 
to  the  estate  first  comes  to  the  knowledge  of  any  person 
interested  therein  after  that  time,  in  which  case  orisinal 
administration  may  be  granted  on  such  property  at  any 
time  within  five  years  next  after  it  so  accrues  or  becomes 
known ;  but  such  administration  can  affect  no  other 
property  .2 

But  if  administration  has  once  been  granted,  and  left 
unfinished  by  the  death,  removal,  or  resignation  of  the 

Dawes  v.  Boylston,  9  Mass.  337  ;  Wheclock  v.  Pierce,  6  Cusli.  288;  Pin- 
ney  v.  McGregory,  102  Mass.  18G.  Prima  fuck  evidence  that  a  deceased 
non-resident  had  conveyed  real  estate  in  tliis  State,  in  fraud  of  liis  credit- 
ors, is  !^utficient  to  warrant  the  grant  of  administration  here.  Bowdoia 
V.  Holland,  10  Cush.  17.     See  Crosbj'  v.  Leavitt,  4  Allen,  410. 

1  Bowdoin  v.  Holland,  10  Cush.  17. 

'  Gen.  St8.  c.  04,  §§  3,  4.  If  a  creditor  who  has  tailed  to  receive  his 
dividend  from  an  insolvent  estate  has  deceased,  an  administrator  maybe 
appointed  to  receive  and  administer  said  (livi<lend,  althougii  more  than 
twenty  years  have  elaijsed  since  the  creditor's  death.     Ibid.  c.  09,  §  28. 


76       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

executor  or  atliiunistnitor,  ad  mi  nist  ration  de  bonis  non 
may  be  granted  afler  the  expiration  of  twenty  years. 
There  is  no  statute  limiting  the  time  of  granting  admin- 
istration of  estates  left  unadministered  by  a  former  exec- 
utor or  administrator.^ 


IN  WHAT   COUNTY  ADMINISTRATION  MUST   BE  APPLIED 

FOR. 

The  petition  for  administration  must  be  presented  to 
the  probate  court  of  the  county  of  which  the  deceased 
was  an  inhaljitaiit  or  in  which  he  was  resident  at  the 
time  of  his  death.^ 

If  the  deceased  person  died  without  the  State,  applica- 
tion must  be  made  to  the  probate  court  of  the  county  in 
which  he  left  estate  to  be  administered.^ 

TO  WHOM  ORIGINAL  ADMINISTRATION  IS  GRANTED. 

The  statute  *  provides  that  — 

"  Administration  of  the  estate  of  an  intestate  shall  be 
granted  to  some  one  or  more  of  the  persons  hereinafter 
mentioned ;  and  they  shall  be  entitled  thereto  as  fol- 
lows :  — 

"  First.  His  widow,  or  next  of  kin,  or  both,  as  the 
probate  court  shall  deem  fit ;  and  if  the}'  do  not  either 
take  or  renounce  the  administration,  they  shall,  if  resi- 
dent within  the  county,  be  cited  by  the  court  for  that 
purpose." 

1  Bancroft  v.  Andrews,  6  Cush.  493. 

-'  Gen.  Sts.  c.  117,  §  2.     As  to  jurisdiction  of  the  probate  courts  depend- 
ing on  the  question  of  residence,  see  auie,  page  50,  notes. 
8  Pinney  v.  McGregory,  102  Mass.  186. 
*  Gen.  Sts.  c.  94,  §  1. 


APPOINTMENT    OF   ADMINISTRATORS.  77 

"  Second.  If  the  persons  so  entitled  are  incompetent, 
or  evidently  unsuitable  for  the  discharge  of  the  trust, 
or  if  they  neglect  without  sufficient  cause  for  thirty  days 
after  the  death  of  the  intestate  to  take  administration 
of  his  estate,  the  probate  court  shall  commit  administra- 
tion to  one  or  more  of  the  principal  creditors,  if  there  is 
any  competent  and  willing  to  undertake  the  trust." 

The  polic}^  of  granting  administration  to  those  most 
directly  interested  in  the  estate  of  the  deceased  has 
been  long  established.  The  statute  31  Edw.  III.  c.  11, 
which  first  took  from  the  clergy  their  exclusive  right  to 
administer,  provided  that  "  the  ordinaries  shall  depute 
of  the  next  and  most  lawful  friends  of  the  dead  person 
intestate  to  administer  his  goods ; "  and  the  statute 
21  Henry  VIII.  c.  5,  provided  that  administration  sliould 
be  granted  "  to  the  widow  of  the  deceased,  or  to  the 
next  of  his  kin,  or  to  both,  as  by  discretion  of  the  same 
ordinary  shall  be  thought  good."  This  language  of  the 
statute  Henry  VIII.  was  followed  in  our  statute  of 
1783  (c.  36),  and  still  stands  without  material  change. 

W?iO  are  next  of  Kin.  In  this  State,  the  degrees  of 
kindred  are  computed  according  to  the  rules  of  the  civil 
law,  which  makes  the  deceased  person  the  point  from 
whence  the  degrees  are  numbered.  Thus,  a  man's 
parents  are  related  to  him  in  the  first  degree,  and  so  are 
his  children.  Both  are  equally  near,  but  in  granting 
administration  the  cliildren,  if  competent,  are  pi-eferred, 
the}'  having  a  more  direct  interest  in  the  estate.  A 
grandson  is  in  the  same  degree  of  kindred  to  the  intes- 
tate as  the  intestate's  brother,  but  is  preferred  I'or  the 
same  reason. 

Kindred  are  lineal  or  collateral.  Lineal  consanguinity 
is  that  subsisting  between  persons  who  are  all  in  a  di- 
rect line   of  descent,  one  from   the   other,  as  between 


78  PROCEEDINOa    IN    TFIE    niOBATE    COURTS. 

son,  father,  and  grandfather ;  or  father,  son,  and  grand- 
son, reckoning  either  upwards  or  downwards.  CoUat- 
eral  kinsmen  are  those  who  are  descended  from  one 
common  ancestor,  but  not  one  from  the  other.  A  man 
and  his  cousins  are  colhiteral  relations  ;  they  both  de- 
scend from  the  same  grandfather,  but  not  lineally. 

The  next  lineal  kindred  of  an  intestate  are  easily  as- 
certained by  counting  either  directly  upwards  or  directly 
downwards  to  his  nearest  living  relative.  His  father 
and  son  are  both  in  the  first  degree ;  his  grandfather 
and  grandson  both  in  the  second.  The  nearness  of  a 
collateral  kinsman  to  the  intestate  is  ascertained  by 
counting  upwards  to  the  common  ancestor  of  both,  and 
then  following  the  branch  downwards  until  the  collat- 
eral kinsman  is  reached,  reckoning  one  degree  for  each 
person.  Thus,  the  intestate's  brother  is  in  the  second 
degree  ;  this  is  seen  by  counting  upwards  to  their  father, 
their  common  ancestor,  one  degree,  and  then  down- 
wards, collaterally,  one  degree,  to  the  brother.  The 
intestate's  uncle  is  in  the  third  degree,  and  so  is  his 
nephew.     His  cousin  is  in  the  fourth. 

Following  this  computation  of  kindred,  and  observing 
the  preferences  arising  from  interest,  administration  of 
the  estate  of  an  intestate  will  be  granted  to  his  next  of 
kin  in  the  following  order:  first,  to  children  ;  second, if 
there  are  no  children,  to  parents  ;  third,  if  there  are  no 
children  nor  parents,  to  brothers  and  sisters,  either  of 
the  whole  or  half  blood  ;  fourth,  to  grandparents  ;  fifth, 
to  nephews,  nieces,  uncles,  aunts  ;  sixth,  to  cousins. 
No  distinction  is  made  between  kindred  on  the  father's 
or  mother's  side.  They  are  all  in  equal  degree  of  kin- 
dred, and  hence  it  may  happen  that  there  are  persons 
equally  related  to  the  intestate  and  equally  entitled  to  the 
administration,  who  are  not  related  at  all  to  each  other. 


APPOINTMENT    OF    ADMINISTRATOPS.  79 

As  to  the  Right  of  the  Widoiv  and  next  of  Kin  to  ad- 
minister. The  statute  does  not  give  the  widow  an 
exclusive  right  to  administer  her  husband's  estate  if  there 
are  next  of  kin  who  also  daim  the  right,  and  are  suita- 
ble persons.  The  right  is  first  in  the  widow  and  next 
of  kin,  either  or  both,  as  the  court  may  deem  fit  ;  and 
the  personal  suitableness  of  the  widow  and  next  of  kin 
is  to  be  considered  in  making  the  appointment.  If  the 
widow  is  evidently  unsuitable,  the  next  of  kin,  if  com 
petent,  is  entitled  to  the  sole  administration.  If  the 
next  of  kin  is  unsuitable,  she,  if  competent,  may  take 
administration  alone.  If  both  are  suitable,  the  court 
may  grant  administration  to  either,  or  jointly  to  both  ; 
and  if  both  are  unsuitable,  the  apj)lication  of  both  will 
be  refused. 

And  where  there  are  several  persons  equally  entitled 
to  take  administration  as  next  of  kin,  and  equally  suit- 
able, the  probate  court  has  power  to  appoint  one  or  more 
of  them. 

If  the  widow  and  next  of  kin,  as  is  often  the  case,  re- 
nounce the  administration,  their  renunciation  does  not 
give  them  a  right  to  nominate  a  substitute.^  There  may 
be  creditors  whose  right  to  administer  under  the  statute 
is  prior  to  that  of  any  such  substitute.  But  where  there 
are  no  creditors  who  are  suitable,  or  if  the  creditors  re- 
fuse, after  being  cited,  to  take  the  administration,  any 
suitable  person  will  generally  be  appointed  on  the 
recommendation  of  the  widow  and  next  of  kin. 

Nor  will  the  renunciation  of  the  next  of  kin,  or  the 
fact  of  their  incompetency,  give  to  other  relatives  of  the 
intestate  any  right  to  administer.  The  preference  made 
by  the  statute  is  of  the  next  of  kin,  and  if  they  decline, 
or  are  unsuitable,  creditors  are  preferred  to  other  kindred. 

1  Cobb  i;.  Ncwcomb,  19  Pick.  337. 


80  PROCEEDINGS    IN    THE    rilOBATE    COURTS. 

As  to  the  suitableness  of  the  Widoto  or  next  of  Kin. 
The  question  of  suitableness  must  depend,  in  some 
measure,  upon  the  facts  of  each  case.^  A  person  may 
be  entirel}'  suitable  to  administer  when  little  more  than 
some  formal  proceeding  is  necessary  for  the  settlement 
of  the  estate,  and  may  be  unsuitable  when  the  duties  to 
be  discharged  are  of  a  different  character.  The  object 
of  administration  is  to  dispose  of  the  estate  of  the  intes- 
tate so  as  to  secure  the  rights  of  creditors  and  make  the 
best  provision  possible,  under  the  circumstances,  for  the 
kin  of  the  deceased.  A  person  of  unsound  mind  is  of 
course  unsuitable  for  such  a  trust,  and  so  is  a  person 
whose  relation  to  the  estate  is  such  as  to  create  the  pre- 
sumption that  he  would  not  administer  with  a  due  re- 
gard to  the  rights  of  those  interested  in  the  estate.  The 
fact  that  one  of  several  next  of  kin  is  also  a  creditor  of 
the  estate,  is  rather  adverse  to,  than  in  favor  of,  his  being 
preferred.  So,  if  he  owes  the  estate,  especially  when 
the  balance  due  has  not  been  definitely  ascertained.  A 
man  who  is  accustomed  to  business  details  is  more  suit- 
able for  the  office  of  administrator  than  one  who  is  not. 
Unsuitableness  may  be  occasioned  by  physical  debility, 
want  of  memory,  or  any  infirmity  which  would  prevent 
the  efficient  discharge  of  the  duties  retjuired.     In  deter- 

1  It  lias  lieeii  held  tliat  the  widow  may  be  set  aside,  if  she  has  barred 
herself  of  ail  interest  in  her  husband's  ])ersonal  estate,  by  her  marriage 
settlement,  or  has  eloped  from  her  husband,  or  lived  separate  from  him. 
If  she  has  been  diA'orced,  «  vicnsa  et  thorn,  slie  forfeits,  it  should  seem,  her 
right  to  administer.     1  Wms.  Ex.  (5th  Am.  ed.)  3G3. 

Where,  upon  the  application  of  the  widow,  it  appeared  that  she  was 
under  the  influence  of  a  person  who  was  indebted  to  the  estate  in  a  large 
amount,  and  who  was  charged  with  combining  with  the  intestate  in  his 
lifetime  to  defraud  his  creditors,  and  that  such  application  was  made  at 
the  request  of  such  debtor  and  not  to  protect  or  subserve  tlie  interests  of 
the  widow,  it  was  held  that  she  was  an  unsuitable  person  to  administer. 
Stearns  v.  Fisk,  18  Pick.  24. 


APPOINTMENT    OF   ADMINISTRATORS.  81 

mining  the  question  of  suitableness,  the  relations  of  the 
applicant  to  the  estate  and  to  the  other  parties  interested, 
the  character  of  the  duties  which  the  condition  of  the 
estate  will  be  likely  to  require  of  the  administrator,  and 
his  personal  fitness  for  those  duties,  are  to  be  considered. 
A  minor  cannot  administer.^  A  citizen  of  another  State 
or  country,  if  otherwise  suitable,  may  be  appointed  to 
administer  in  this  State. 

Tlie  fact  that  one  who  is  personally  unsuitable  is  re"ady 
to  give  bond  with  sufficient  sureties  for  the  faithful  dis- 
charge of  his  trust,  does  not  make  him  suitable.  The 
remedy  of  parties  damaged  b}-  his  official  misconduct,  by 
action  on  his  bond,  may  subject  them  to  expense  of  liti- 
gation for  which  they  can  have  no  legal  adequate  reme- 
dy ;  and  besides,  an  administrator,  if  so  disposed,  may 
prejudice  the  interests  of  parties  concerned  without  be- 
ing exposed  to  any  action.^ 

As  to  the  Rigid  of  Creditors  to  administer.  If  the 
widow  and  next  of  kin  are  incompetent,  or  evidently 
unsuitable,  or  if  they  neglect  for  thirty  days  after  the 
intestate's  death  to  take  administration  of  his  estate,  the 
court  grants  administration  to  one  or  more  of  the  prin- 
cipal creditors.  This  right  is  given  to  the  creditor  under 
such  circumstances,  in  order  that  the  collection  of  his 
claim  may  not  be  defeated  for  want  of  an  administrator. 
The  creditor  applying  must  satisfy  the  court  that  he  is 
a  creditor,  and  this  lie  may  do  by  exhibiting  his  books 
of  account  or  other  evidences  of  deljt.  The  amount  of 
his  claim  seems  not  to  be  material,^  but  the  claim  must 
be  one  which  by  law  survives.^     The  creditor  cannot  be 

1  McGooch  V.  McGooch,  4  Mass.  348.     '•'  Stearns  v.  Fisk,  18  I'ick.  27. 
8  Arnold  v.  Sabin,  1  Cusli.  525.     In  this  case  the  claim  of  tlie  creditor 
who  was  appointed  was  for  Ji /I y-e if/ ht  ce.nts. 

<  Smith  V.  Sherman,  4  Cash.  40H;  Stebbins  v.  Palmer,  1  Pick.  71. 

c, 


82  TROCKEDINGS    IN    THE    PROBATE    COURTS. 

appointed,  however,  until  after  the  widow  and  next  of 
kin  liave  been  cited,  and  had  opportunity  either  to  take 
or  renounce  the  administration.  The  same  considera- 
tions as  to  personal  suitableness  apply  to  a  creditor  who 
petitions  for  a  grant  of  administration  as  to  one  next  of 
kin.  If  the  deceased  left  no  widow,  husband,  or  next 
of  kin  in  this  State,  administration  is  granted  to  a  public 
administrator  in  preference  to  creditors. 

An  to  the  Right  of  other  Persons  to  administer.  The 
statute  regulating  the  granting  of  administration  further 
provides :  — 

"  od.  If  there  is  no  such  creditor,  administration 
shall  be  granted  to  such  other  person  as  the  court  shall 
deem  fit ;  provided,  — 

"  4th.  That  if  the  deceased  was  a  married  woman, 
administration  of  her  estate  shall  in  all  cases  be  granted 
to  her  husband,  if  competent  and  willing  to  undertake 
the  trust,^  unless  by  force  of  a  marriage  settlement  or 
otherwise  she  has  made  some  testamentary  disposition 
of  her  separate  estate,  or  some  other  provision,  which 
renders  it  necessary  or  proper  to  appoint  some  other 
person  to  administer  her  estate  ;  and 

"  5th.  If  the  deceased  leaves  no  widow,  husband,  or 
next  of  kin,  in  this  State,  administration  shall  be 
granted  to  a  public  administrator  in  preference  to  cred- 
itors." 

^Yhen  Administration  is  granted  to  a  Public  Adminis- 
trator. The  statute  provides  for  the  appointment  in 
each  county  of  one  or  more  public  administrators,  and 
makes  it  the  duty  of  such  administrator  to  administer 

1  If  the  marriage  was  voidable,  the  husband  will  be  entitled  to  admin- 
istration, unless  sentence  of  nullity  was  pronounced  before  her  death. 
If  it  was  void  from  the  beginning,  he  is  not  entitled  to  administer.  1 
Wms.  Ex.  (5th  Am.  ed.)  357. 


APPOINTMENT    OF    ADMINISTRATOES.  83 

upon  the  estate  of  any  person  who  dies  intestate  within 
his  countjs  or  dies  elsewhere,  leaving  property  in  such 
county  to  be  administered,  and  not  leaving  a  known 
husband,  widow,  or  heir  in  this  State.  But  the  adminis- 
tration will  not  be  granted  to  the  public  administrator 
when  the  husband,  widow,  or  any  heir  of  the  deceased 
claims  in  writing  the  right  of  administering,  or  requests 
the  appointment  of  some  other  suitable  person,  if  such 
Imsband,  widow,  heir,  or  other  person  accepts  the  trust 
and  gives  bond ;  and  such  husband,  widow,  heir,  or  other 
person  may  be  appointed  after  letters  of  administration 
have  been  granted  to  a  public  administrator,  and  before 
the  final  settlement  of  the  estate.  Upon  such  appoint- 
ment of  a  successor  the  power  of  the  public  adminis- 
trator over  the  estate  ceases.^ 


TO  WHOM   OTHER  THAN"  ORIGINAL  ADMINISTRATION  IS 
GRANTED. 

Neither  the  widow  nor  next  of  kin  have  a  right  to  claim 
the  grant  of  administration  de  bonis  non?  The  priority 
of  right  to  administer  is  regulated  entirely  by  statute, 
and  a  distinction  in  this  particular  is  made  between 
original  and  other  administration.  It  is  provided,  in 
case  of  the  death  or  resignation  of  the  original  executor 
or  administrator,  without  having  fully  administered  the 
estate,  that  administi-ation  de  bonis  non  may  be  granted 
"  to  some  suitable  person  ;  "  ^  and  in  case  of  the  removal 
of  the  executor  or  administrator,  "  to  such  person  as 
shall  be  deemed  fit."* 

These  provisions,  while  they  do  not  exclude  any 
person  from  the  administration,  give  the  probate  court 

1  Gen.  St8.  c.  95,  §§  1-4.  2  Russell  v.  Hoar,  8  Met.  190. 

a  Gen.  8ts.  c.  101,  §§  1,  6.  ♦  Ibid.  §  2. 


84  PROCEEDINGS    IN   THE    PROBATE   COURTS. 

full  discretion  in  the  selection  of  the  new  administrator. 
In  some  cases  where  administration  with  the  will 
annexed  is  granted,  the  next  of  kin  may  have  no  in- 
terest in  the  estate.  They  may  take  nothing  under  the 
provisions  of  the  will,  or  their  legacies  may  have  Ijeen 
paid  to  them  by  the  original  executor.  In  such  cases, 
the  residuary  legatee,  or  other  person  interested  under 
the  wOl,  is  entitled  to  administer,  the  general  policy  of 
the  law  in  granting  administration  being  to  give  the 
management  of  the  property  to  the  person  who  has  the 
beneficial  interest  in  it. 


PROCEEDINGS   IX   PROBATE   COURT.  —  PRACTICE. 

The  Petition.  The  person  claiming  administration 
must  appl}''  by  petition  in  writing  to  the  probate  court 
having  jurisdiction  of  the  case.-^  The  petition  should 
set  forth  the  fact  of  the  death  of  the  person  whose 
estate  is  to  be  administered,  the  time  of  his  death,  the 
county  of  which  he  was  last  an  inhabitant,  or  in  which 
he  was  resident,  and  the  grounds  on  which  the  petitioner 
claims  the  right  to  administer.  The  petition  should 
also  state  the  name  and  residence  of  the  widow,  if  any, 
of  the  deceased,  and  the  names,  residences,  and  degree 
of  kindred  of  his  next  of  kin.  If  the  next  of  kin  are 
minors,  the  fact  should  be  stated.  If  the  petition  is  by 
a  creditor,  the  fact  tliat  the  widow  and  next  of  kin  have 
neglected  for  thirty  days  since  the  intestate's  death  to 
take  administration  should  be  stated. 

If  the  petition  is  for  the  appointment  of  a  special 
administrator,  the  reasons  for  which  letters  testamentary 
or  of  administration  are  delayed,  whether  in  consequence 

1  As  to  jurisdiction,  see  ante,  pages  50,  76. 


APPOINTMENT   OF    ADMINISTRATORS.  85 

of  a  suit  concerning  the  proof  of  a  will,  or  other  cause, 
should  be  stated  in  the  petition. 

If  the  petitioner  is  a  stranger  to  the  estate,  the  rea- 
sons upon  which  he  bases  his  application  should  be  fully 
stated. 

When  a  public  administrator  petitions,  the  fact  that 
the  deceased  left  no  husband,  widow,  or  heir  in  this 
State  should  be  set  forth. 

If  the  petition  is  for  other  than  original  administra- 
tion it  should  set  forth  the  fact  of  the  death,  resignation, 
or  removal  of  the  executor  or  original  administra- 
tor ;  and  it  should  also  appear  from  the  petition 
tliat  there  is  personal  estate  of  the  deceased  remaining 
to  be  administered  to  the  amount  of  twenty  dollars,  or 
that  there  are  debts  to  that  amount  remaining  due  from 
the  estate,  or  that  something  remains  to  be  performed  in 
execution  of  the  will.^ 

Notice  to  Persons  interested.  The  next  step  in  the 
proceedings  is  the  notification  of  all  persons  interested 
of  the  pendency  of  the  petition.  This  is  absolutely 
necessary  when  the  petitioner  is  a  creditor  or  other 
person  than  the  husl)and,  widow,  or  next  of  kin  of  the 
deceased,  unless  all  persons  having  an  equal  or  prior 
right  to  administer  assent  to  the  appointment  of  the 
petitioner,  or  renounce  their  right.  The  neglect  of  the 
widow  and  next  of  kin  for  thirty  days  after  the  intes- 
tate's death  to  take  administration  does  not  render  their 
citation  the  less  necessary,  although  a  literal  construc- 
tion of  the  statute  would  seem  to  indicate  otherwise.^ 
The  citation  need  not  be  personally  served  upon  the 
widow  and  next  of  kin.  It  may  be  difficult  in  many 
cases  to  ascertain  who  are  the  next  of  kin,  and  if  per- 

'  As  to  petitioiiH  for  ailministration,  see  Appendix,  forms  Nos.  16-26. 
2  Arnold  v.  Sabin,  1  Cush.  626. 


86       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

sonal  service  wiis  required  the  proceedings  would  nec- 
essarily be  attended  with  uncertainty  and  delay.  The 
statute  does  not  define  the  manner  in  which  the  citation 
shall  be  served,  but  leaves  it  to  the  discretion  of  the  court. 
Ordinarily,  publication  of  a  general  notice  to  all  parties 
interested  will  be  a  sufficient  citation.  Any  person  in- 
terested in  the  estate  may  aj)pear  and  show  cause  for  or 
against  the  appointment  of  the  person  named  in  the 
petition. 

If  the  person  or  persons  whose  right  to  administer  is 
prior  or  equal  to  the  petitioners  renounce  administration 
in  writing,  the  delay  and  expense  of  a  citation  may  be 
avoided.  But  if  the  person  having  such  prior  claim 
comes  into  court  and  verbally  declines  to  take  adminis- 
tration, it  is  not  enough.  The  renunciation,  to  be  effect- 
ual, must  be  recorded,  and  should  therefore  be  made 
in  writing  in  all  cases.^ 

As  to  Proof  of  the  Death.  The  questions  usually 
raised  in  cases  where  the  petitioner's  appointment  is 
contested  relate  to  his  suitableness  for  the  trust,  or  to 
the  priorit}'  of  his  right.  It  is  not  often  that  any  doubt 
exists  of  the  death  of  the  person  whose  estate  is  the  sub- 
ject of  the  petition,  but  such  cases  occur  where  the  long- 
continued  absence  of  the  person,  without  being  heard 
of,  renders  his  death  probable,  though  the  fact  cannot 
be  proved.  After  the  lapse  of  seven  years,  without  in- 
telligence concerning  him,  the  law  presumes  that  he  is 
dead,  and  administration  is  granted  accordingly.^  It 
must  appear,  however,  that  he  has  not  been  heard  from 
by  persons  who  would  have  been  likely  to  hear  from 
him,  if  living,  or  that  ineffectual  search  has  been  made 

1  Arnold  v.  Sabin,  1  Cusli.  525 ;  and  see  Stebbins  v.  Lathrop,  4  Pick. 
44. 

2  See  Jochurnsen  v.  Suffolk  Savings-Bank,  3  Allen,  87. 


APPOINTMENT    OF    ADMINISTRATORS.  87 

for  such  a  person.  But  thougli  the  presumption  of 
death  does  not  attach  to  the  mere  lapse  of  time,  short  of 
seven  years,  the  fact  of  death  may  be  found  from  a 
shorter  period,  when  other  circumstances  concur ;  as,  if 
the  party  sailed  on  a  voyage  which  should  long  since 
have  been  accomplished,  and  the  vessel  has  not  been 
heard  from  ;  under  such  circumstances  administration 
has  been  granted  after  the  lapse  of  one  year.* 

Administrator' s  Bonds.  The  appointment  of  the  ad- 
ministrator or  administrators  is  made  complete  b}^  the 
approval  of  the  bond  required  of  them  by  statute.  The 
bond  must  be  with  sufficient  sureties,  in  such  sum  as 
the  judge  of  the  probate  court  orders,  payable  to  the 
judge  and  his  successors,  and  with  condition,  in  the  case 
of  an  original  administrator,  to  return  into  the  probate 
court  within  three  months  a  true  inventory  of  all  the 
estate  of  the  deceased  ;  to  administer  according  to  law 
all  the  personal  estate  and  the  proceeds  of  all  real  estate 
sold  for  the  payment  of  debts ;  to  render  upon  oath  an 
account  of  his  administration  within  one  year,  and  at 
any  other  times  when  required  by  the  probate  court ; 
to  pay  an}^  balance  remaining  in  his  hands  upon  the  set- 
tlement of  his  accounts  to  such  persons  as  the  court 
shall  direct;  and  to  deliver  his  letters  of  administration 
into  the  i>4-obate  court  in  case  any  will  of  the  deceased 
is  thereafter  proved  and  allowed.  The  condition  of  the 
bond  required  of  an  administrator  de  bonis  non  is  the 
same  as  that  of  an  administrator  originally  appointed. 

Administrators  with  the  will  annexed,  and  adniinis- 

1  Administration  was  granted  in  January,  1858,  on  the  estate  of  A., 
who  sailed  from  Liverpool  in  January,T857,  for  Valparaiso;  the  voyage 
should  have  been  made  in  ten  weeks  ;  nothing  had  heen  heard  of  the 
ship.  Held,  that  payment  by  the  underwriters  of  the  amount  for  which 
the  ship  was  insured  was  very  strong  evidence  in  sujjport  of  the  petition 
f(jr  administrati(ni.     In  the  Goods  of  Main,  1  Swahey  &  Tris.  11. 


88       PROCEEDINGS  IX  TUE  PROBATE  COURTS. 

trators  de  bonis  non  with  the  will  annexed,  are  required 
to  give  bond  with  condition  to  return  an  inventory  of 
the  estate  witliin  three  months  ;  to  administer  according 
to  law  and  the  will  of  the  deceased  all  the  personal 
estate,  and  the  proceeds  of  all  real  estate  sold  for  the 
pa3'ment  of  delits  and  legacies  ;  and  to  render  an  account 
upon  oath  within  one  year,  and  at  any  other  times  when 
required  by  the  court. ^ 

The  bond  of  a  special  administrator  is  conditioned  to 
return  an  inventory  within  such  time  as  the  judge  shall 
order ;  to  account  on  oath  fur  all  the  goods,  chattels, 
debts,  and  effects  of  the  deceased  that  shall  be  received 
by  him  as  such  special  administrator,  whenever  required 
by  the  probate  court ;  and  to  deliver  the  same  to  who- 
ever shall  be  appointed  executor  or  administrator  of  the 
deceased,  or  to  such  other  person  as  sliall  be  lawfully 
entitled  to  receive  the  same.^ 

A  public  administrator  may  give  a  separate  bond  for 
every  estate  which  he  is  called  upon  to  administer,  or  he 
may  give  a  general  bond  for  the  faithful  administration 
of  all  estates  on  which  administration  is  granted  to  him 
as  puljlic  administrator.  His  separate  bond  is  the  same 
as  that  required  of  other  original  administrators,  with 
the  further  condition,  that  if  an  executor  or  administra- 
tor is  appointed  as  his  successor  in  any  case,  to»surrender 
his  letters  of  administration  into  the  probate  court,  with 
an  account  of  his  doings  therein,  and  to  pay  over  to  his 
successor  all  property  of  the  deceased  not  administered.^ 
His  general  l)on(l  is  conditioned  to  return  into  the  pro- 
bate court,  within  three  months  from  the  time  letters  of 
administration  are  granted  to  him  on  the  estate  of  any 

1  An  administrator  with  the  will  annexed  who  is  residuary  legatee 
may  give  bond  to  pay  debts  and  legacies.     Stat.  1870,  c.  285. 

2  Stat.  1876,  c.  liOO.  »  Ibid.  c.  95,  §  6. 


APP0INT5IENT   OF   ADMINISTRATORS.  89 

person  deceased,  a  true  inventory  of  the  estate  of  such 
person ;  to  admmister  according  to  law  the  personal 
estate  of  such  person,  and  the  proceeds  of  all  real  estate 
sold  for  payment  of  debts  ;  to  render  an  account  of  his 
administration  of  every  such  estate  within  one  year  from 
the  date  of  his  letters  of  administration  thereon,  and  at 
least  once  in  each  year  until  the  trust  is  fulfilled,  and  at 
any  other  times  when  required  by  the  probate  court ;  to 
pay  the  balance  of  everj^  such  estate  remaining  in  his 
hands  upon  the  settlement  of  his  accounts  to  such  per- 
sons as  the  probate  court  shall  direct,  and  when  such 
estate  is  fully  administered  to  deposit  the  whole  amount 
remaining  in  his  hands  with  the  treasurer  of  the  Com- 
monwealth ;  to  deliver  the  letters  of  administration  on 
the  estate  of  an}-  person  into  the  probate  court,  in  case 
a  will  of  such  person  is  thereafter  proved  and  allowed, 
and  upon  the  appointment  of  a  successor  as  administra- 
tor of  any  estate,  to  surrender  his  letters  of  admhiistration, 
with  an  account  on  oath  of  his  doings,  and  upon  a  just 
settlement  of  his  accounts  to  pay  over  to  his  successor 
all  property  of  the  deceased  not  administered.^ 

But  any  administrator  may  be  exempted  from  giving 
bond  for  the  proceeds  of  sales  of  real  estate,  except 
when  authorized  to  make  such  sales.^ 

Upon  the  approval  of  the  bond  by  the  judge  of  the 
probate  court,  letters  of  administration  issue  to  the  per- 
son appointed,  who  may  forthwith  proceed  in  the  exe- 
ecution  of  his  trust  unless  an  appeal  is  taken  from  the 
decree  making  the  appointment.  But  a  special  admin- 
istrator may  proceed  notwithstanding  an  aj^peal  is  taken.^ 

1  Gen.  Sts.  c.  95,  §  7.  2  ibid.  g.  101,  §  13. 

»  Ibid.  c.  94,  §  6. 


CHAPTER   VI. 

APPOINTMENT   OF   GUARDIANs! 

The  probate  court  in  each  county,  when  it  appears 
necessary  or  convenient,  may  appoint  guardians  to 
minors  and  others  being  inhabitants  of,  or  residents  in, 
the  same  county,  and  to  such  as  reside  out  of  tliis  State 
and  have  any  estate  within  the  same.^ 

OF   INIINOES. 

A  father  is  the  guardian  by  nature  of  his  infant  child  ; 
and  on  his  death,  the  mother ;  the  natural  guardian  has 
custody  of  the  infant's  person,  but  cannot  act  in  matters 
relating  to  the  infant's  estate.  If  therefore  an  infant 
acquires  property  b}'  inheritance  or  otherwise,  the  ap- 
pointment of  a  guardian  may  be  as  necessary  during 
the  lifetime  of  the  father  as  after  his  decease. 

If  the  minor  is  under  the  age  of  fourteen  years,  the 
probate  court  may  nominate  and  appoint  his  guardian. 
If  he  is  above  that  age,  he  may  nominate  his  own 
guardian,  but  his  choice  is  not  conclusive  upon  the 
court.  If  in  the  oj^inion  of  the  court  the  person  nomi- 
nated is  not  suitable  for  the  trust,  the  court  will  reject 
him  ;  and  if  the  infant  will  not  choose  a  proper  person, 
the  court  will  nominate  and  appoint  a  guardian.  If  the 
minor  resides  without  the  State,  or,  after  being  cited,  he 

1  Gen.  Sts.  c.  109,  §  1. 


APPOINTMENT    OF    GUARDIANS.  91 

neglects  to  nominate  a  suitable  person,  the  court  may 
appoint  his  guardian  as  if  he  were  under  the  age  of 
fourteen  3'ears.^ 

The  minor,  for  whom  a  guardian  has  been  appointed, 
may,  on  his  arrival  at  the  age  of  fourteen  years,  nomi- 
nate a  new  guardian,  but  such  nomination  does  not,  as 
of  right,  vacate  the  appointment  previously  made.  His 
choice  will  be  sanctioned  or  not,  as  the  discretion  of  the 
court  shall  direct. 

The  guardian  of  a  minor  has  the  custody  and  tuition 
of  his  ward,  and  the  care  and  management  of  all  his 
estate,  and,  unless  sooner  discharged  according  to  law, 
continues  in  office  until  the  minor  arrives  at  the  age  of 
twenty-one  years.  But  the  father  of  the  minor,  if 
living,  and  in  case  of  his  death,  the  mother,  they  being 
respectively  competent  to  transact  their  own  business, 
and  fit  persons  for  the  trust,  are  entitled  to  the  custody 
of  the  person  of  the  minor  and  the  care  of  his  education.^ 

Who  are  suitable  for  the  Trust.  — A  guardian,  having 
the  control  of  the  estate  of  his  ward,  should  possess  the 
qualifications  necessar}-  to  its  judicious  management. 
The  interests  of  the  ward  sometimes  render  necessary 
the  sale  of  the  estate,  or  portions  of  it,  and  a  new  in- 
vestment of  the  i)roceeds  ;  a  proper  discharge  of  the 
trust  in  such  cases  can  be  best  promoted  by  the  appoint- 
ment of  a  guardian  of  business  experience.  In  case  of 
the  death  or  unfitness  of  the  minor's  parents,  the  guar- 
dian has  the  custody  and  tuition  of  his  ward,  and  he 
should  therefore  be  a  person  not  indifferent  to  the  hap- 
piness of  his  ward,  and  competent  to  direct  his  educa- 
tion. 

It  is  advisable,  when  practicable,  that  the  guardiau- 

1  Gen.  St8.  c.  109,  §  2. 

2  Ibid.  §  4  ;  Stilt.  1«7I,  c.  IIG ;  Stat.  1873,  c.  367. 


92       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

ship  be  given  to  some  person  whose  natural  affection  for 
the  ward  will  prompt  him  to  the  faithful  discharge  of  his 
trust,  for  it  often  occurs  that  the  minor's  sole  security 
is  in  the  affection,  or  the  personal  integrity,  of  his  guar- 
dian. The  sureties  on  a  guardian's  bond,  though  entirely 
sufficient  at  the  time  they  sign  it,  may  prove,  when  the 
minor  arrives  at  full  age  —  perhaps  at  the  end  of  ten  or 
fifteen  years  —  to  be  bankrupt  as  well  as  their  principal ; 
and  in  such  case,  if  the  guardian  is  dishonest,  the  minor 
is  without  remedy.  The  court  can,  of  course,  order  the 
guardian  to  file  a  bond  with  new  sureties  at  any  time  ; 
but  it  is  sometimes  the  fact  that  the  only  person  living 
who  can  be  expected  to  interest  himself  in  the  welfare 
of  the  ward,  is  the  guardian  who  is  wronging  him,  and 
thus  the  insufficiency  of  the  bond  may  not  be  brought 
to  the  notice  of  the  court  until  it  is  too  late. 

An  administrator  ought  not,  while  he  is  engaged  in 
the  settlement  of  an  estate,  to  be  appointed  guardian  of  a 
minor  Avho  is  an  heir  to  the  same  estate,  unless  there  are 
decided  personal  reasons  for  the  appointment.  The  two 
trusts  are  incompatible.  It  is  the  duty  of  the  guardian  to 
inspect  the  proceedings  of  the  administrator,  to  examine 
his  accounts,  and  to  cause  him  to  be  cited  if  he  is  negli- 
gent in  his  administration.  It  is  obvious  that  these 
essential  duties  might  not  be  discharged  when  both  the 
administration  and  guardianship  were  in  the  hands  of 
the  same  person. 

Testamentary  Cruardians.  —  A  father  by  his  last  will 
in  writing  may  appoint  guardians  for  his  cliildren, 
whether  born  at  the  time  of  making  the  will  or  after- 
wards, to  continue  during  the  minority  of  the  child  or  a 
less  time.  Such  testamentary  guardian  has  the  same 
powers,  and  performs  the  same  duties  with  regard  to  the 
person  and  estate  of  the  ward,  as  a  guardian  appointed 


APPOINTMENT   OF   GUARDIANS.  93 

by  the  probate  court.  But  a  testator  can  appoint  a 
guardian  for  his  own  cliildren  onl3\  He  cannot  appoint 
guardians  for  other  children,  althougli  he  gives  them  his 
projDerty.^ 

The  Petition  for  the  appointment  of  a  muior  under  the 
age  of  fourteen  years  is  usually  made  by  the  father  or 
mother  of  the  minor,  if  either  of  them  are  living  ;  if  they 
are  not  living,  bj^  some  relative  or  friend  of  the  minor. 
If  the  petition  is  by  any  person  other  than  a  jDarent,  the 
assent  of  the  parents,  or  the  survivor  of  them,  to  the  ap- 
pointment prayed  for  should  be  indorsed  on  the  petition. 
If  both  parents  are  dead,  such  assent  may  be  given  by 
the  next  of  kin  ;  or  if  there  are  no  known  next  of  kin, 
by  the  persons  who  have  the  care  of  the  minor.  When 
such  assent  is  expressed,  the  appointment  prayed  for  is 
usually  made  at  once  ;  otherwise,  a  citation  is  issued  to 
parties  interested  before  any  appointment  is  made.  The 
petition  should  state  the  full  name  of  the  minor,  the 
date  of  his  birth,  his  residence,  the  full  name  and  last 
place  of  residence  of  his  father,  and  the  ground  upon 
■which  the  petitioner  claims  the  appointment.^ 

If  the  petition  is  for  the  appointment  of  some  person 
other  than  a  parent  of  the  minor,  and  alleges  the  unfit- 
ness of  the  parents  to  have  the  custody  of  the  child,  the 
appointment  prayed  for  cannot  be  made  until  after  no- 
tice to  the  parents  or  surviving  parent,  and  a  hearing.^ 

If  the  minor  is  above  the  age  of  fourteen  years,  he 
may  appear  in  court  and  nominate  his  guardian,  or  he 
may  make  his  nomination  before  a  justice  of  the  peace, 
or  the  city  or  town  clerk.  In  such  cases,  the  petition 
may  be  made  by  the  person  nominated  by  the  minor, 
and  a  certificate  of  the  fact  of  the  nomination  should  be 

1  Gilbert  v.  Hebard,  8  Met.  127  ;  Wardwell  v.  Wanlwoll,  <)  Alien,  618. 

2  See  Appendix,  forms  Nos.  20-28.  3  Stat.  1873,  c.  3G7. 


94       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

indorsed  on  the  petition  by  the  justice  or  clerk  l)efore 
whom  it  is  made.^  If  the  minor  neglects  to  nominate  a 
guardian,  any  person  interested  may  petition.^ 

OF   INSANE   PERSONS    AND    SPENDTHRIFTS. 

The  probate  court  ma}-  appoint  a  guardian  for  an  in- 
sane person,  and  for  a  person  who  so  wastes  his  pro})erty 
by  excessive  drinking,  gaming,  idleness,  or  debaueliery 
of  any  kind,  as  to  expose  himself  or  his  family  to  want 
or  suffering,  or  any  place  to  charge  or  expense  for  the 
support  of  himself  or  his  family.^ 

The  application  for  the  appointment  of  a  guardian  of 
an  insane  person  may  be  made  by  the  relations  and 
friends  of  such  person,  or  by  the  mayor  and  aldermen  or 
selectmen  of  the  cit}^  or  town  of  which  such  person  is  an 
inhabitant  or  resident. 

In  the  case  of  a  spendthrift,  the  mayor  and  aldermen 
or  selectmen  of  the  city  or  town  of  which  he  is  an  inliab- 
itant  or  resident,  or  upon  which  he  is  or  may  become 
chargeable,  may  complain  to  the  probate  court.  The 
capacity  in  which  the  complainants  act  should  be  stated 
in  the  petition.* 

In  all  cases,  notice  of  not  less  than  fourteen  days  is 
given  to  the  supposed  insane  person  or  spendthrift  of  the 
time  and  place  appointed  for  the  hearing.^     The  notice 

1  See  Appendix,  form  No.  29.  ^  ii,icl.  form  No.  30. 

3  Gen.  Sts.  c.  109,  §§  8,  0. 

*  A  copy  of  the  complaint  against  a  spenfltlirift,  anfl  of  the  order  of 
notice  thereon,  may  be  filed  in  the  registry  of  deeds  for  the  county  or 
district ;  and  if  a  guardian  is  appointed  on  such  complaint,  all  contracts, 
except  for  necessaries,  and  all  gifts,  sales,  and  transfers  of  real  or  per- 
sonal estate,  made  hy  the  spendthrift  after  such  filing  of  the  complaint 
and  order,  and  before  the  termination  of  the  guardianship,  will  be  void. 
Gen.  Sts.  c.  109,  §  10;  Chandler  v.  Simmons,  97  Mass.  608. 

5  Gen.  Sts.  c.  109,  §§  8,  9. 


APPOINTMEiXT    OF   GUARDIANS.  95 

must  be  served  in  the  manner  directed  by  the  court,  and 
no  appointment  can  be  made  until  after  due  service  of 
the  notice.  If  the  insane  person  has  previously  been 
under  guardianship,  and  the  office  of  guardian  has  in  any 
way  become  vacant,  notice  must  be  given  to  him  before 
a  new  guardian  can  be  appointed ;  and  he  is  entitled  to 
l)e  heard  upon  the  subject  of  the  complaint  in  like  man- 
ner as  if  he  had  not  been  under  guardianship.^ 

At  the  time  and  place  named  in  the  citation  the  com- 
plainants and  the  supposed  insane  person  or  spendthrift 
will  be  heard.  Acts  of  the  person  complained  of  at  or 
near  the  time  of  making  the  complaint  may  be  proved 
for  the  purpose  of  showing  the  state  of  his  mind  and 
his  manner  of  life,  but  not  his  acts  at  a  remote  period. 
If  after  a  full  hearing  it  appears  that  the  person  com- 
plained of  is  unable  to  take  care  of  himself  by  reason 
of  insanity,  or  is  so  wasteful  of  his  property  that  a  guar- 
dian is  needed  to  protect  his  family  or  the  public,  a  suit- 
able person  will  be  appointed. 

The  guardian  appointed  should  not  only  be  a  suitable 
person  in  a  general  sense,  but  as  far  as  is  practicable 
should  be  fitted  to  discharge  the  duties  rendered  neces- 
sary by  the  particular  condition  and  necessities  of  the 
ward.  It  is  not  enough,  in  every  case,  that  the  guardian 
is  faithful  and  competent  to  manage  the  ward's  estate  to 
advantage  ;  he  should  be  a  person  capable  of  exercising 
a  proper  influence  and  judicious  control  over  his  ward. 
Tlie  permanent  improvement  and  substantial  welfare 
of  the  ward  are  the  main  objects  of  the  guardianship  ;  and 
the  guardian  who  lias  the  care  and  custody  of  his  person 
should  be  personally  fitted,  by  his  relations  to  the  ward 
and  otherwise,  to  promote  these  objects.  In  many  cases, 
the  determination  of  the  question  of  suitability  may  be 

1  AUis  V.  Morion,  4  Gray,  63. 


96       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

influenced  by  tlie  wislies  of  the  ward  ;  for  a  man  may  be 
SO  insane  as  to  be  a  fit  subject  for  guardianship,  and  yet 
have  a  sensible  opinion  and  strong  feeling  as  to  the  per- 
son to  be  placed  over  him  ;  and  the  reasonable  wishes  of 
such  a  person  should  be  consulted  by  the  court. 

When  a  guardian  is  appointed  for  an  insane  person  or 
spendtlnift,  the  court  makes  an  allowance,  to  be  paid  by 
the  guardian,  for  all  reasonable  expenses  incurred  by  the 
ward  in  defending  himself  against  the  complaint.^  Such 
guardian  has  the  care  and  custody  of  the  person  of  his 
ward  and  the  management  of  all  his  estate.  He  may  be 
discharged  by  the  probate  court  on  the  application  of  the 
ward  or  otherwise,  when  it  appears  that  such  guardian- 
ship is  no  longer  necessary.^ 

OF   PERSONS    OUT   OF   THE   STATE. 

A  guardian  may  be  appointed  for  a  minor  insane  per- 
son or  spendthrift  residing  out  of  this  State,  and  having 
estate  here,  upon  the  petition  of  any  friend  of  such  per- 
son, or  any  one  interested  in  his  estate,  in  expectancy  or 
otherwise.  The  application  may  be  made  to  the  probate 
court  of  any  county  in  which  there  is  any  estate  of  such 
absent  person,^  and  after  such  notice  to  all  persons  in- 
terested as  the  court  shall  order,  a  guardian  will  be 
appointed.  Such  guardian  has  the  same  powers  and 
duties  with  respect  to  any  estate  of  the  ward  found 
within  this  State,  and  also  with  respect  to  the  person  of 
the  ward,  if  he  comes  to  reside  therein,  as  are  prescribed 
to  other  guardians.* 

1  Gen.  Sts.  c.  109,  §  11.  2  Hjid.  §  26. 

3  If  the  estate  of  the  person  liable  to  be  put  under  guardianship  con- 
sists in  part  of  personal  property  held  in  trust  for  him,  the  probate  court 
of  the  county  where  the  trustee  resides  has  jurisdiction  to  aj)[)oint  the 
guardian.     Clarke  v.  Cordis,  4  Allen,  4lj6.     See  Appendix,  form  No.  31. 

*  Gen.  Sts.  c.  109,  §§  13,  14. 


APPOINTMENT   OF   GUARDIANS.  97 

"  In  all  cases  where  any  guardian  and  his  ward  are 
residents  of  any  other  State  or  territory  of  the  United 
States,  and  such  ward  is  entitled  to  property  of  any 
description  in  this  State,  when  such  guardian  produces 
to  the  probate  court  of  the  county  in  which  such  property 
or  the  principal  part  thereof  is  situated,  a  full  and  com- 
plete transcript  from  the  records  of  a  court  of  competent 
jurisdiction  in  the  State  or  territory  in  which  he  and  his 
ward  reside,  duly  exemplified  or  authenticated,  showing 
that  he  has  been  appointed  guardian  of  such  ward,  and 
that  he  has  given  a  bond  and  securit}-  in  the  State  or 
territory  in  which  he  and  his  ward  reside  in  double  the 
value  of  the  property  of  such  ward,  and  also  showing  to 
such  court  in  this  Commonwealth  that  a  removal  of  the 
property  of  such  ward  will  not  conflict  with  the  terms 
or  limitations  attending  the  right  b}'  which  the  ward 
owns  the  same,  then  such  transcript  may  be  recorded  in 
such  court  in  this  Commonwealth,  and  such  guardian 
shall  be  entitled  to  receive  letters  of  guardianship  of  the 
estate  of  such  minor  from  such  court  in  this  Common- 
wealth which  shall  authorize  him  to  demand,  sue  for, 
and  recover,  any  such  property,  and  remove  the  same  to 
the  place  of  residence  of  himself  and  his  ward.  And 
such  court  in  this  Commonwealth  may  order  any  resi- 
dent guardian,  executor,  or  administrator,  having  any  of 
the  estate  of  such  ward,  to  deliver  the  same  to  such  non- 
resident guardian."  ^ 

OF   MARRIED   WOMEN. 

The  recent  statutes  allowing  married  women  to  hold 
property  to  their  own  use  free  from  the  control  of  their 
husbands,  rendered  necessary  some  provisions  for  the 

1  Stat.  1875,  c.  189. 
7 


98       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

care  of  the  separate  propert}^  of  minor  and  insane  mar- 
ried women.  And  it  is  now  provided,  that  "  wlien  a 
married  woman  owns  property,  real  or  personal,  a  guar- 
dian may  be  appointed  to  her  for  the  same  causes,  and 
in  the  same  manner,  and  with  the  same  powers  and 
duties,  as  if  she  were  sole,  except  as  hereinafter  provided. 
But  no  guardian  shall  be  so  appointed  without  such 
notice  to  her  husband  as  the  court  may  order. 

Such  guardian  shall  not  have  the  care,  custody,  or 
education  of  his  ward,  except  in  case  of  the  insanity  of 
her  husband,  or  of  his  abandoning  his  wife  by  absenting 
himself  from  the  State,  and  making  no  sufficient  provi- 
sion for  her. 

Suc^h  guardian  shall  not  apply  the  propert}'  of  his  ward 
to  the  maintenance  of  lierself  and  familj'  while  she  is 
married,  unless  authorized  by  the  probate  court  on  ac- 
count of  the  inability  of  the  husband  suitably  to  main- 
tain her  or  them,  or  for  other  cause  which  the  court 
deems  sufficient."  ^ 

And  when  a  married  woman  is  by  reason  of  insanity 
incompetent  to  release  her  right  of  dower  or  right  of 
homestead  in  her  husband's  lands,  a  guardian  may  be 
appointed  for  her  in  the  same  manner  as  if  she  were  sole, 
with  the  powers  and  duties  given  to  guardians  of  mar- 
ried Avomen  owning  propert3%  and  the  husband  or  any 
suitable  person  may  be  appointed.^ 

The  petition  for  the  appointment  of  a  guardian  of  a 
married  woman  should  be  in  tlie  general  form  prescribed 
for  petitions  for  guardians  of  minors  and  insane  persons, 
as  the  case  may  be,  and  should  particularly  state  the 
reasons  for  which  the  proposed  guardianship  is  neces- 
sary. 

1  Gen.  Sts.  c.  108,  §§  16-18.  «  Ibid.  §  19. 


APPOINTMENT   OP   GUARDIANS.  99 


GUARDIAN  S   BONDS. 

Every  guardian  of  a  minor  appointed  by  the  probate 
court  is  required  to  give  bond,  with  surety  or  sureties  to 
the  judge  of  the  probate  court,  in  such  sum  as  he  shall 
order  with  condition : 

"  To  make  a  true  inventory  of  all  the  real  estate,  and 
all  the  goods,  chattels,  rights,  and  credits,  of  the  ward, 
that  shall  come  to  his  possession  or  knowledge,  and  to 
return  the  same  into  the  probate  court  at  such  time  as 
the  court  shall  order  ; 

"  To  dispose  of  and  manage  all  such  estate  and  effects 
according  to  law  and  for  the  best  interests  of  the  ward, 
and  faithfully  to  discharge  his  trust  in  relation  thereto, 
and  to  the  custody,  education,  and  maintenance  of  the 
ward; 

"  To  render  an  account  on  oath  of  the  property  in  his 
hands,  including  the  proceeds  of  all  real  estate  sold  by 
him,  and  of  the  management  and  disposition  of  all  such 
property,  within  one  year  after  his  appointment,  and  as 
often  as  once  in  three  years  thereafter,  and  at  such  other 
times  as  the  probate  court  shall  direct  (but  the  guardian 
may  be  exempted  by  the  probate  court  from  giving  bond 
for  the  proceeds  of  sales  of  real  estate  except  when 
authorized  to  make  such  sales)  ; 

"  And  at  the  expiration  of  his  trust  to  settle  his  ac- 
counts in  the  probate  court,  or  with  the  ward  or  his  legal 
representatives ;  and  to  pay  over  and  deliver  all  the 
estate  and  effects  remaining  in  his  hands  or  due  from 
him  on  such  settlement  to  the  person  or  persons  lawfully 
entitled  thereto."  ^ 

A  testamentary  guardian  gives  bond  with  the  same 
condition  as  if  appointed  by  the  court,  except  that  when 

1  Gen.  Sts.  c.  lO'J,  §  16. 


100      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

the  testator  has  ordered  or  required  in  his  will  that  a 
bond  be  not  given,  it  is  not  required,  unless  from  a 
change  in  the  situation  and  circumstances  of  the 
guardian,  or  for  other  sufficient  cause,  the  probate  court 
deems  it  proper  to  require  it.^ 

The  condition  of  the  bond  given  by  the  guardian  of 
an  insane  person  or  spendthrift  is  the  same  as  that  given 
by  the  guardian  of  a  minor,  except  that  the  provisions 
relating  to  the  education  of  the  ward  are  omitted.^ 

The  condition  of  the  bond  given  by  the  guardian  of  a 
person  without  the  State  is  the  same  as  is  required  when 
the  ward  lives  within  the  State,  except  that  the  provi- 
sions respecting  the  inventory,  the  disposal  of  the  estate 
and  effects,  and  the  account  to  be  rendered,  are  confined 
to  such  estate  and  effects  as  come  to  his  hands  in  this 
State  :  and  the  provisions  respecting  the  custody  of  the 
ward  are  not  applicable,  unless  he  comes  to  reside  within 
this  State.3  I 

Upon  the  approval  of  his  bond  by  the  judge  of  the 
probate  court,  the  guardian  receives  his  letter  of 
guardianship,  and  has  full  authority  to  proceed  in  the 
discharge  of  his  trust. 

1  Gen.  Sts.  c.  109,  §  6.  *  Ibid.  §  12.  '  Ibid.  §  15. 


CHAPTER   VII. 

APPOINTMENT   OF   TRUSTEES. — THUSTS. 
IN    WHAT    CASES    TRUSTEES    MAY    BE    APPOINTED. 

If  in  a  will  the  testator  has  omitted  to  appoint  a 
trustee  in  this  Commonwealth,  and  if  such  appointment 
is  necessary  to  carry  into  effect  the  provisions  of  the 
will,  the  probate  court  may,  after  notice  to  all  persons 
interested,  appoint  a  trustee  who  shall  have  the  same 
powers,  rights,  and  duties,  and  in  whom  the  estate  shall 
vest  in  like  manner  as  if  he  had  been  originally 
appointed  by  the  testator.^ 

And  when  a  trustee  under  a  written  instrument 
declines,  resigns,  dies,  or  is  removed  before  the  objects 
thereof  are  accomplished,  if  no  adequate  provision  is 
made  therein  for  supplying  the  vacancy,  the  probate 
court,  after  notice  to  all  persons  interested,  may  appoint 
a  new  trustee  to  act  alone  or  jointly  with  the  others,  as 
the  case  may  be.^  Such  new  trustee,  upon  giving  the 
bonds  and  security  required,  has  the  same  powers, 
rights,  and  duties,  whether  as  a  sole  or  joint  trustee,  as 
if  he  had  been  originally  appointed  ;  and  the  trust  estate 

1  Gen.  Sts.  c.  100,  §  7. 

2  li.  devised  property  to  II.  iind  R.,  their  heirs  and  assigns,  and  the 
survivor  of  tlieni,  upon  certain  trusts.  R.  died  before  the  trusts  were 
fully  executed.  Held,  that  it  was  the  duty  of  the  probate  court,  under 
Rev.  Sts.  c.  69,  §  8  (Gen.  Sts.  c.  100,  §  9).  the  will  being  silent  on  the 
subject,  to  ajipoint  a  co-trustee  to  act  with  the  survivor.  Dixou  v.  Ho- 
mer, V2  Cush.  41. 


102      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

vests  in  him  in  like  manner  as  it  had  or  wouhl  have 
vested  in  the  trustee  in  whose  phice  he  is  substituted; 
and  the  court  may  order  such  conveyances  to  he  made 
by  the  former  trustee  or  his  representatives,  or  by  the 
other  remaining  trustee,  as  may  be  proper  or  convenient 
to  vest  in  him,  either  alone  or  jointly  with  the  others, 
the  trust  estate.^ 

Trustees  are  appointed  Ijy  the  probate  court  to  receive 
and  hold  the  amount  paiJ  for  damages  sustained  by  the 
laying  out,  alteration,  or  discontinuance  of  a  highway,  in 
cases  in  which  an  estate  for  life  or  for  a  terra  of  years 
in  the  property  affected  belongs  to  one  person,  and  the 
remainder  or  reversion  in  fee  belongs  to  another,  and  a 
party  interested  is  incapacitated  by  legal  disability  from 
choosing  a  trustee,  or  the  parties  in  interest  cannot 
agree  upon  a  choice.  The  appointment  is  made  by  the 
court  of  the  county  in  which  the  property  is  situated, 
and  the  annual  income  of  the  amount  alloAved  for 
damages  is  j)aid  to  the  person  having  the  estate  for  life 
or  years,  and  the  remainder  to  the  person  entitled  to  the 
reversion  in  fee  or  his  heirs  or  devisees.^ 

Whenever  it  appears  that  the  real  estate  taken  or 
affected  by  the  laying  out,  alteration,  or  discontinuance, 
of  a  highway  is  incumbered  by  any  contingent  re- 
mainder, executory  devise,  or  power  of  appointment,  the 
probate  court  of  the  county  in  which  the  land  is 
situated  may  appoint  a  trustee  or  trustees  to  hold  the 
money  recovered  as  damages,  and  invest  the  same  for  the 
benefit  of  the  persons  who  would  have  been  entitled  to 

1  Gen.  Sts.  c.  100,  §§  9,  10.  Parker  v.  Converse,  5  Gray,  336  ;  Dixon 
V.  Horaer,  12  Cush.  41 ;  Nugent  v.  Cloon,  117  Mass.  219. 

-  Gen.  Sts.  c.  43,  §§  17,  18.  This  applies  to  cases  only  in  which  the 
relation  of  tenant  for  life  or  years  and  remainder-man  exists  without  modifi- 
cation by  contract  between  the  parties  or  otherwise.  Edmunds  v.  Boston, 
108  Mass.  J3o. 


APPOINTMENT  OF  TRUSTEES.  103 

said  estate  in  the  same  manner  as  if  such  location, 
alteration,  or  discontinuance  had  not  been  made.  The 
appointment  may  be  made  on  the  petition  of  the  county 
commissioners,  or  of  any  person  in  possession  or  enjoy- 
ment of  the  land  either  as  tenant  of  a  freehold  estate  or 
of  a  term  of  years.  If  the  commissioners  and  such 
tenant  in  possession  neglect  or  refuse  to  petition,  the 
appointment  may  be  made  on  petition  of  any  j)erson  in 
behalf  of  such  person  whether  in  being  oi"  not  as  may 
by  an}'  possibility  be  or  become  interested  in  the  prop- 
erty.i 

If  a  trustee  holding  funds,  bequeathed  to  a  city  or 
town  for  any  charitable,  religious,  or  educational  pur- 
pose, neglects  to  make  an  annual  exhibit  of  the  condi- 
tion of  such  funds  as  required  by  law,  or  is  incapable  of 
discharging  the  trust,  or  unsuitable  to  manage  the  affairs 
of  the  same,  the  probate  court  may  remove  him  and 
supply  the  vacancy.^ 

A  widow  who  waives  the  provision  made  for  her  in 
the  will  of  her  husband,  thereby  becomes  entitled  to 
such  portion  of  his  estate  as  she  would  have  been  enti- 
tled to  if  he  had  died  intestate  ;  provided,  however,  that 
if  the  share  of  the  personal  estate  to  which  she  thus  be- 
comes entitled  exceeds  the  sum  of  ten  thousand  dollars, 
she  receives  that  sum  in  her  own  right,  and  is  entitled 
to  the  income  only  of  the  excess  of  said  share  above 
the  sum  of  ten  thousand  dollars  during  her  natural  life. 
In  such  case,  upon  application  by  the  widow  or  any  one 
interested  in  the  estate,  the  judge  of  probate  may  ap- 
point one  or  more  trustees  to  receive,  hold,  and  manage 
such  excess  during  her  natural  life.^ 

1  Stat.  1875,  c.  117.  2  Gon.  Sts.  c.  31,  §§  9,  10. 

*  Stat.  1801,  c.  104.  Sucli  trustees  arc  subject  to  the  provisions  of 
chap.  100  of  tlie  Gen.  Sts.,  so  far  as  tlie  same  are  applicable.  Stat.  1870, 
c.  202. 


104      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

"  Whenever  any  real  estate  is  incumbered  by  any 
contingent  remainder,  executory  devise,  or  power  of  ap- 
pointment, the  supreme  judicial  court  may,  upon  peti- 
tion of  an}-  part}'  who  has  an  estate  in  possession  in  such 
real  estate,  appoint  a  trustee  for  such  estate,  and  author- 
ize said  trustee  to  mortgage  the  estate  for  such  amounts, 
on  such  terms  and  conditions,  and  for  such  purposes  as 
may  seem  to  such  court  judicious  or  expedient,  and  shall 
fix  the  form  and  amount  of  the  bond  to  be  given  by  such 
trustee. 

Notice  of  the  proceedings  shall  be  given  to  all  persons 
who  are  or  may  become  interested  in  the  real  estate,  and 
to  all  persons  whose  issue,  not  in  being,  may  become 
interested  therein,  as  the  court  may  order.  The  court 
shall,  in  all  such  cases,  appoint  a  suitable  person  to  ap- 
pear and  act  in  such  proceedings  as  the  next  fiiend  of 
all  minors,  persons  not  ascertained  or  persons  not  in  be- 
ing, who  may  be  or  may  become  interested  in  such  real 
estate,  the  cost  of  whose  appearance  and  services,  in- 
cluding compensation  of  counsel,  to  be  determined  by 
the  court,  shall  be  paid  as  the  court  ma}'  order,  either 
out  of  the  proceeds  of  the  real  estate  or  by  the  peti- 
tioners, in  Avhicli  latter  case  execution  may  issue  in  the 
name  of  such  next  friend.  An  order  or  decree  made  in 
any  such  proceedings,  and  a  mortgage  of  real  estate 
thereunder,  shall  be  binding  and  conclusive." 

The  probate  court  for  the  county  in  which  such  in- 
cumbered estate  is  situated  has  concurrent  jurisdiction 
wdth  the  supreme  judicial  court  in  cases  arising  under 
the  foregoing  provisions.-^ 

"  The  probate  court,  when  it  appears  that  the  wood 
and  timber  standing  on  land  held  in  dower,  or  on  land 
the  use  and  improvement  of  which  belongs,  for  life  or 

1  Stat.  1871,  c.  322. 


APPOINTMENT  OF  TRUSTEES.  105 

otherwise,  to  any  person  other  than  the  owner  of  the  fee 
therein,  has  ceased  to  improve  by  growth,  or  for  any 
cause  ought  to  be  cut,  may  appoint  a  trustee,  and  au- 
thorize and  empower  him  to  sell  and  convey  said  wood 
and  timber,  in  the  way  and  manner  provided  by  law  for 
the  sale  of  real  estate  by  guardians,  to  be  cut  and  car- 
ried away  within  the  time  to  be  limited  in  the  order  of 
sale,  and  to  hold  and  invest  the  proceeds  thereof,  after 
papng  the  expenses  of  such  sale  therefrom,  and  pay 
over  the  income,  above  the  taxes  and  other  expenses  of 
the  trust,  to  the  person  entitled  to  such  dower,  or  right 
to  the  use  and  improvement,  while  the  same  continues  ; 
and  at  the  expiration  of  such  dower  or  right  to  the  use 
and  improvement,  to  pay  the  principal  sum  to  the  owner 
of  such  land."  ^ 

"  When  lands  in  this  State  are  held  in  trust  for  per- 
sons resident  here,  by  a  trustee  who  derives  his  appoint- 
ment or  authority  from  a  court  having  no  jurisdiction 
within  this  Commonwealth,  application  may  be  made  to 
the  probate  court  in  the  county  in  which  the  lands  are 
situated,  and  such  trustee,  after  due  notice  of  such  ap- 
plication, shall  be  required  to  take  out  letters  of  trust 
from  said  court ;  and  upon  the  neglect  or  refusal  of  the 
trustee  to  compl}^  with  the  orders  of  the  court  therein, 
the  court  shall  declare  such  trust  vacant,  and  appoint  a 
new  trustee,  in  wliom  the  estate  held  in  trust  shall  vest 
in  like  manner  as  if  he  had  been  originall}'-  appointed  or 
authorized  by  said  probate  court."  The  notice  to  the 
trustee  may  be  given  by  serving  on  him  a  copy  of  the 
petition  and  the  citation  thereon  fourteen  days  at  least 
before  the  time  fixed  for  the  return  of  such  citation,  or 
by  such  other  notice  as  the  court  may  order.^ 

1  Stat.  18G9,  c.  249.  2  stat.  1871,  c.  327. 


106  PROCEEDINGS   IN   THE   PROBATE   COURTS. 


FORMAL   PROCEEDINGS. 

A  trustee  appointed  by  will  should  petition  the  pro- 
bate court  for  a  confirmation  of  his  appointment.  The 
petition  slioukl  state  in  general  terms  the  nature  of  the 
trust,  llie  manner  in  which  it  was  created,  and  the  will- 
ingness of  the  petitioner  to  accept  the  trust  and  give  the 
bond  required.^ 

If  the  appointment  is  necessary  in  consequence  of  a 
vacancy  in  the  office  of  trustee,  the  petition  should  set 
forth  the  fact,  and  state  in  what  way  the  vacancy  was 
occasioned,  whether  by  the  omission  of  the  testator  to 
make  an  appointment,  or  by  the  resignation  or  death  of 
a  former  trustee,  or  otherwise.^ 

Any  person  interested  in  a  trust  estate  may  petition 
for  the  appointment  of  a  trustee.  A  citation  to  parties 
interested  wall  be  ordered  before  an  appointment  is 
made,  unless  their  written  assent  is  given  to  the  prayer 
of  the  petition.^ 

trustees'  bonds. 

Every  trustee  under  a  will,  unless  exempted,  is  re- 
quired, before  entering  upon  the  duties  of  his  trust,  to 
give  bond  with  sufficient  surety  or  sureties  to  the  judge 

1  Trustees  to  wliora  real  estate  is  devised  with  a  power  of  sale,  and 
who  are  exempt  from  giving  bond,  may  legally  execute  the  power  with- 
out an  appointment  from  the  probate  court.  Parker  v.  Sears,  117  Alass. 
513. 

'^  See  Appendix,  forms  Nos.  32,  34. 

3  A  testator  appointed  three  trustees,  and  provided  that  if  a  vacancy 
occurred  in  the  number  of  trustees,  the  surviving  or  acting  trustees  should 
nominate  a  suitable  person  to  be  appointed  by  tlie  judge  of  probate  to 
fill  the  vacancy.  A  new  trustee  was  so  appointed  without  notice.  Held, 
that  the  trustee  was  duly  appointed,  as  in  making  the  ajjpointment  the 
judge  did  not  act  officially,  but  under  the  will.  Shaw  v.  I'aine,  12  Allen, 
293;  Webster  Bank  v.  Eldridge,  115  Mass.  424. 


APPOINTMENT  OF  TRUSTEES.  107 

of  the  probate  court  for  the  county  in  which  the  will 
was  proved,  with  condition  to  make  a  true  inventory  of 
all  the  estate  belonging  to  him  as  trustee,  and  which 
shall  come  to  his  possession  or  knowledge,  and  to  return 
the  same  into  the  probate  court  at  such  time  as  the 
court  directs ;  to  dispose  of  and  manage  all  such  estate 
and  effects,  and  faithfully  discharge  his  trust  in  relation 
thereto,  according  to  law  and  the  will  of  the  testator  ; 
to  render  an  account  on  oath  of  the  property  in  his 
hands,  and  of  the  management  and  disposition  thereof, 
within  one  year  and  at  any  other  times  when  required 
by  the  probate  court ;  and  at  the  expiration  of  his  trust, 
to  settle  his  accounts  with  the  probate  court,  and  pay 
over  and  deliver  all  the  estate  and  effects  i^emaining  in 
his  hands  or  due  from  him  on  such  settlement,  to  the 
person  or  persons  entitled  thereto,  according  to  law  and 
the  will  of  the  testator.^  , 

"  A  trustee  under  a  will  shall  be  exempt  from  giving 
a  surety  or  sureties  on  his  bond,  when  the  testator  has 
ordered  or  requested  such  exemption  ;  ^  or,  that  no  bond 
should  be  taken,  or  when  all  the  persons  interested  in 
the  trust  fund,  being  of  full  age  and  legal  capacity, 
request  such  exemption ;  but  such  trustee  shall  in  all 
cases  give  his  own  personal  bond :  provided,  that  the 
judge  of  the  probate  court  may  at  any  time  require  a 
bond,  with  sufficient  surety  or  sureties,  if  he  is  of 
opinion  that  the  same  is  required  by  a  change  in  the 
situation  or  circumstances  of  such  trustee,  or  for  other 
sufficient  cause. 

Every  trustee    under   a  will  who   neglects   to   give 

1  Gen.  Sts.  c.  100,  §  1. 

2  Tlie  order  or  request  of  the  testator  need  not  be  in  express  words. 
If  it  can  be  gathered  from  the  whole  will,  it  is  sufficient.  Lowell,  Appel- 
lant, 22  Pick.  215. 


108      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

bond  as  required  by  tliis  act,  within  such  time  as  the 
probate  court  allows,  shall  be  considered  as  having 
declined  the  trust :  ^^rovj<f(;c?,  that  no  trustee  Avho  has 
already  undertaken  a  trust  under  laws  heretofore  ex- 
isting shall  be  required  by  the  provisions  of  this  act  to 
give  bond,  except  when  the  judge  of  the  probate  court 
is  of  opinion  that  the  same  is  required  by  a  change 
in  the  situation  or  circumstances  of  such  trustee  or  for 
other  sufficient  cause."  ^ 

A  trustee  appointed  by  the  probate  court  to  receive 
and  hold  money  paid  for  damages  sustained  by  the 
laying  out,  alteration,  or  discontinuance  of  a  higliway, 
is  required  to  give  a  bond,  with  condition  for  the  faithful 
performance  of  his  duties.^ 

A  trustee  appointed  under  a  deed  is  not  required  to 
give  bond  unless  provision  is  made  therefor  in  the  in- 
strument ;  and  the  bond,  if  one  is  required,  must  be 
framed  and  conditioned  in  conformity  to  the  terras  of 
the  deed. 

In  all  cases  not  otherwise  provided  for  by  law,  trustees 
appointed  b}'"  the  probate  court  are  required  to  give 
bond  in  the  manner  provided  for  trustees  under  a  will 
or  written  instrument.^  Any  trustee  appointed  b}'  the 
probate  court,  required  by  law  to  give  a  bond,  is 
exempted  from  giving  a  surety  or  sureties  on  his  bond 
when  all  persons  interested  in  the  trust  fund,  being  of 
full  age  and  legal  capacity,  request  such  exemption  ;  but 
the  probate  court  may  in  all  such  cases,  at  any  time, 
require  a  bond  with  sufficient  surety  or  sureties.^ 

In  any  case  not  otherwise  provided  for  b}^  law  where 
a  trustee  has  been  appointed  by  the  probate  court 
without  having  given  a  bond,  the  court,  upon  petition 

1  Stat.  1873,  c.  122.    2  Gen.  Sts.  c.  43,  §  18 ;  Stat.  1876,  c.  117,  §  2. 
3  Stat.  1869,  c.  357.  *  Stat.  1874,  c.  852,  §  2. 


APPOINTMENT  OF  TRUSTEES.  109 

of  any  person  interested  therein,  may  order  the  trustee 
to  srive  bond  with  sureties  within  a  time  fixed  in  the 
order ;  and  if  he  fails  to  comply  with  the  order  he 
will  be  removed  and  a  new  trustee  appointed  in  his 
stead. 1 

Sale  and  Investment  of  Trust  Estates.  The  probate 
courts  have  original  jurisdiction,  concurrent  with  the 
supreme  judicial  court,  over  all  matters  relating  to  the 
sale  of  trust  estates  and  the  investment  of  the  proceeds 
of  such  sale.^  The  sale  will  be  ordered  when  it  appears 
to  the  court  to  be  necessary  or  expedient.  If,  upon 
application  to  the  court,  it  shall  appear  that  the  trust 
estate  "  may  be  held  in  trust  for,  or  that  any  remainder 
or  contingent  interest  may  be  devised  or  limited  over  to, 
heirs  at  law,  or  other  persons,  whether  in  being  or  not 
in  being,  notice  of  such  proceeding  shall  be  given  to  such 
heirs  at  law  or  persons,  and  if  such  persons  are  not  in 
being,  to  the  parent  or  parents  of  such  persons  in  such 
manner  as  the  court  shall  order.  The  court  in  such  case 
shall  appoint  a  suitable  and  competent  person  to  appear 
and  act  as  the  next  friend  of  such  persons  in  such  pro- 
ceedhigs,  the  cost  of  whose  appearance  and  services, 
including  compensation  of  counsel,  to  be  determined  by 
the  court,  shall  be  paid  as  the  court  may  order,  either 
out  of  the  trust  estate  or  by  the  persons  commencing 
said  proceedings,  in  which  latter  case  execution  may 
issue  therefor  in  the  name  of  the  person  appointed. 
Any  order  or  decree  made  in  any  such  proceedings,  and 
any  sale  or  transfer  of  property  thereunder,  shall  be  con- 
clusive upon  all  persons  for  whom  such  property  or  any 

1  Stat.  1869,  c.  357. 

a  Gen.  Sts.  c.  100,  §§  14-16;  Stat.  1869,  c.  331. 


110       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

remainder  or  contingent  interest  therein  is  held  in  trust, 
or  to  wliom  tlie  same  is  devised  or  limited  over,  in  the 
same  manner  as  if  they  had  been  in  being  and  appeared 
and  answered  in  the  case  or  assented  to  the  order  or 
decree."  ^ 

Under  these  provisions  of  llie  statute,  the  trustee,  in 
case  of  a  difference  of  opinion  between  him  and  the 
persons  interested  in  the  estate  in  regard  to  tlie  disposi- 
tion to  be  made  of  the  property  in  his  hands,  may  pro- 
tect himself  by  obtaining  the  direction  of  the  court. 
And  if  the  trustee  should  neglect  to  apply  for  the 
direction  of  the  court,  any  person  interested  in  the  trust 
estate  may  make  the  application.  It  may  happen  that 
some  particular  disposition  of  the  funds  may  be  unsafe 
or  improper,  and  such  as  the  courts  would  not  have 
sanctioned  on  a  previous  application,  and  yet  it  may  not 
be  such  as  to  make  the  trustee  liable  as  for  misconduct 
in  the  discharge  of  his  trust.  In  such  a  case,  the  loss  or 
damage  that  would  otherwise  result  may  be  prevented 
by  an  application  to  the  court  on  the  part  of  some 
person  interested  in  the  estate. 

The  application,  Avhether  made  by  the  trustee  or  by  a 
person  interested  in  the  estate,  should  state  all  the  facts 
of  the  particular  case,  and  pray  for  the  direction  of  the 
court. 

TERMINATION   OF   CERTAIN   TRUSTS. 

The  statute  provides  that  when  it  appears,  upon 
petition  or  otherwise,  to  the  probate  court  of  the  county 
where  letters  testamentary  or  of  administration  have 
been  granted  on  the  estate  of  a  person  deceased,  that 
such  person  in  his  lifetime  made  a  conveyance  of  his 

1  Stat.  1864,  c.  168. 


APPOINTMENT  OF  TRUSTEES.  Ill 

real  estate  in  this  State  in  trust  for  the  benefit  of  his 
creditors,  and  the  trustee  certifies  that  all  the  debts 
secured  thereby  (due  to  other  persons  than  himself) 
have  been  paid,  or  otherwise  adjusted  to  the  satisfaction 
of  the  creditors  so  far  as  known,  and  that  he  is  desirous 
to  settle  his  trust  account  and  terminate  the  trust,  the 
court  shall  appoint  a  time  and  place  for  hearing  all  per- 
sons interested  therein  ;  notice  of  which  shall  be  given 
by  advertisement  in  some  newspaper  printed  in  the 
county  or  otherwise  as  the  court  may  order.  Upon 
such  hearing  the  court  may  terminate  the  trust,  so  far  as 
the  creditors  and  persons  claiming  under  them  are  con- 
cerned, and  discharge  such  real  estate  therefi'om  ;  and 
may  settle  the  trust  account,  and  make  au}^  further 
order  as  to  the  disposition,  distribution,  or  partition  of 
the  remaining  trust  estate,  not  inconsistent  with  the 
provisions  of  the  original  instrument  creating  the  trust. 
This  provision  does  not  apply  to  any  case  where  the  in- 
strument creating  the  trust  does  not  bear  date  more 
than  six  years  previous  to  the  time  appointed  for  the 
hearing ;  nor  can  it  aifect  the  operation  of  the  insolvent 
laws.-^ 

GENERAL   EQUITY  JURISDICTION. 

The  probate  courts  in  the  several  counties,  con- 
currently with  the  supreme  judicial  court,  have  general 
equity  powers  in  all  matters  relating  to  trusts  created  by 
wilL2 

All  matters  of  trust  of  which  probate  courts  have 
jurisdiction,  except  those  arising  under  wills,  are  within 
the  jurisdiction  of  the  probate  court  for  any  county  in 
which  any  of  the  parties  interested  in  the  trust  reside, 

>  Gen.  St8.  c.  100,  §  17,  18.  2  Ibid.  §  22. 


112      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

or  in  which  any  of  the  land  held  in  trust  is  situated ; 
and  such  jurisdiction,  when  once  assumed,  excludes  the 
probate  court  for  any  other  county  from  taking  jurisdic- 
tion of  any  matter  subsequently  arising  in  relation  to 
the  same  trust.^ 

1  Stat.  1874,  c.  352,  §  8. 


CHAPTER  VIII. 

REMOVAL    AND     EESIG NATION    OF    EXECUTORS    AND 
OTHERS. 

If  an  executor,  administrator,  guardian,  or  trustee, 
who  may  be  required  by  the  probate  court  to  give  a  new 
bond,  does  not  comply  with  the  order  within  the  time 
fixed  by  the  court,  he  will  be  removed  and  some  other 
person  appointed  in  his  stead  ;  ^  and  if  he  become  insane, 
or  otherwise  incapable  of  discharging  his  trust,  or  for 
any  reason  "  evidently  unsuitable  "  therefor,  he  may  be 
removed,  notice  having  first  been  given  to  him  and  to 
all  parties  interested. ^ 

An  executor  or  other  officer  appointed  by  the  probate 
court  may  be  incapacitated  by  physical  debility,  want  of 
memory,  or  any  infirmity  wliich  prevents  the  efficient 
performance  of  his  trust  ;  and  he  may  be  evidently  un- 
suitable because  of  liis  personal  relations  to  the  estate, 
either  by  reason  of  his  being  indebted  to  it,  or  of  the 
interest  he  has  under  the  will  of  his  testator,  or  his  situ- 
ation as  an  heir  at  law,  or  because  the  prosecution  of 
his  individual  claims  against  the  estate  would  conflict 
with  his  official  duties,  or  for  other  reasons.  The  statute 
does  not  enumerate  any  causes  of  unsuitability,  but  gives 

1  Gen.  StB.  c.  101,  §  17.  2  Hjjj.  §  2 ;  c.  100,  §  8;  c.  109,  §  24. 


114      PROCEKDINGS  IN  THE  PROHATE  COURTS. 

the  court  a  broad  discretion  to  include  the  various  cases 
that  may  arise. ^ 

The  rehation  existing  between  a  guardian  and  his 
ward  may  require,  for  the  proper  discharge  of  its  obli- 
gations, other  than  merely  business  qualifications  ;  and 
the  guardian  may  be  unsuitable  for  the  care  and  custody 
of  the  person  of  the  ward,  although  no  question  be  made 
of  his  integrity,  disinterestedness,  or  general  abilit3^ 
The  guardian  of  a  person  non  comjyos  mentis  should  be 
especially  fitted  for  his  trust,  and  in  determining  the 
question  of  personal  suitableness,  the  peculiar  condition, 
interests,  and  necessities  of  the  Avard  must  be  considered. 
It  is  not  enough,  in  every  case,  for  the  guardian  to  sup- 
ply the  material  wants  of  his  ward.  It  is  his  duty  to 
make  use  of  every  available  means  to  promote  the  ward's 
welfare,  improvement,  and  liappiness.  With  every  dis- 
position to  discharge  his  obligations  thoroughly  and  con- 
scientiously, he  may  be,  from  various  causes,  incapable 
of  exercising  the  beneficial  influence  over  his  waid  that 
might  be  exerted  by  another.  The  continuance  of  the 
relation  of  guardian  and  ward  under  such  circumstances 
might  materially  interfere  with  the  permanent  improve- 
ment and  general  welfare  of  the  ward,  and  thus  defeat 
the  main  object  of  the  guardianship.  Whenever,  from 
any  cause,  the  guardian  becomes  unable  to  perform  any 
important  and  substantial  part  of  the  duties  of  his  office, 
he  is  liable  to  be  removed  as  "evidently  unsuitable."''^ 

When  an  executor  or  adniinisti-ator  residing  out  of  this 
State,  having  been  duly  cited  by  the  probate  court, 
neglects  to  render  his  accounts  and  settle  the  estate,  he 

1  Tliayer  v.  Homer,  11  Met.  104;  Winsliip  v.  Bass,  12  Mass.  200; 
Newcomb  v.  Williams,  9  Met.  538 ;  Richards  v.  Sweetland,  6  Cush.  324 ; 
Andrews  c.  Tucker,  7  Pick.  250 ;  Wiidridge  v.  Patterson,  15  Mass.  148. 

2  See  Perkins  v.  Finnegan,  105  Mass.  501. 


REMOVAL    AND   RESIGNATION   OF   EXECUTORS,  ETC.      115 

ma}'  be  removed.^  If  the  executor  or  administrator 
neglects  to  settle  his  accounts  within  six  months  after 
the  return  of  the  insolvent  commissioners,  or  the  final 
liquidation  of  the  demands  of  the  creditors,  or  within 
such  further  time  as  the  court  shall  allow,  he  may  be 
forthwith  removed.^ 

Any  unfaithful  administration  which  will  sustain  an 
action  on  the  bond  of  an  executor  or  other  officer  ap- 
pointed by  the  probate  court,  is  sufficient  cause  for  his 
removal.^ 

A  trustee  may  be  removed  on  the  application  of  the 
parties  beneficially  interested  in  the  trust  estate,  if  it 
appears  that  his  removal  is  essential  to  their  interests.* 

A  trustee  who  holds  funds  bequeathed  to  a  city  or 
town  for  any  charitable,  religious,  or  educational  pur- 
pose, may  be  removed  by  the  probate  court  for  neglect  to 
make  the  annual  exhibit  of  the  condition  of  such  funds 
as  required  by  law,  or  for  incapacity  or  unsuitability.^ 

The  person  applying  for  the  removal  of  an  executor 
or  other  officer  should  set  forth  in  his  petition  the  par- 
ticular fact  of  neglect  or  other  maladministration  which 
renders  the  removal  proper  ;  ^  and  the  burden  of  proof 
is  upon  him  to  sustain  the  allegations  in  his  petition.  In 
all  cases,  the  person  whose  removal  is  asked  for  is  entitled 

1  Gen.  Sts.  c.  101,  §  2.  2  ibid.  c.  99,  §  26. 

'  It  is  no  cause  for  the  removal  of  an  administrator  that  he  declines 
to  inventory,  or  commence  proceedings  to  recover  for  tiie  benefit  of  the 
heirs,  certain  real  estate  formerly  belonging  to  tlie  deceased,  but  which 
had  been  set  off  on  an  execution  against  iiim  in  his  lifetime  issued  upon 
a  judgment  alleged  by  the  heirs  to  have  been  recovered  by  the  fraud  of 
the  plaintiff.  Richards  v.  Sweetland,  6  Cush.  324.  But  otherwise,  when 
creditors  of  an  insolvent  estate  request  the  administrator  to  inventory 
real  estate  fraudulently  conveyed  by  the  intestate  offering  to  indemnify 
him,  and  he  refuses.     Andrews  t;.  Tucker,  7  Pick.  250. 

<  Gen.  Sts.  c.  100,  §  8.  5  Ibid.  c.  31,  §  10. 

®  See  Appendix,  form  No.  35. 


110      ruOCEKDINGS  IN  THE  PROBATE  COURTS. 

to  notice,  and  to  an  opportunity  to  show  cause  why  tlie 
removal  should  not  be  made.  At  the  hearing,  both  the 
petitioner  and  the  respondent  may  offer  any  evidence 
pertinent  to  the  issue  ;  and  either  party  may  appeal  from 
the  decree  of  the  court  making,  or  refusing  to  make,  the 
removal. 

The  removal  of  a  trustee  who  holds  funds  bequeathed 
to  a  city  or  town  for  a  charitable,  religious,  or  educational 
purpose,  must  be  on  the  petition  of  five  persons.^  In 
all  other  cases  any  person  interested  in  the  trust  estate 
may  petition. 

When  an  executor  or  administrator  is  removed,  or 
letters  of  administration  are  revoked,  all  previous  sales, 
whether  of  real  or  personal  estate,  made  lawfully  by  him, 
and  with  good  faith  on  the  part  of  the  purchaser,  and 
all  other  lawful  acts  done  by  such  executor  or  adminis- 
trator, remain  valid  and  effectual.  ^ 

Upon  the  request  of  an  executor,  administrator,  guar- 
dian, or  trustee,  the  probate  court  may  in  its  discretion 
allow  him  to  resign  his  trust.^  The  executor  or  other 
officer  applying  for  leave  to  resign,  should  present  to  the 
court  with  his  petition  a  just  and  true  account  of  his 
administration.  Until  his  accounts  are  settled,  after 
such  notice  to  the  parties  interested  as  the  circumstances 
of  the  case  require,  his  request  will  not  be  allowed.* 

If,  after  the  granting  of  letters  of  administration  as  of 
an  intestate  estate,  a  will  of  the  deceased  is  duly  proved 
and  allowed,  the  first  administration  will  be  revoked." 

The  guardian  of  an  insane  person  or  spendthrift  may 
be  discharged  by  the  probate  court  on  the  application  of 
the  ward  or  otherwise,  when  it  appears  that  such  guar- 

1  Gen.  Sts.  c.  3JL  §  10.  «  Gen.  St8.  c.  101,  §  3. 

8  Ibid.  §  6 ;  c.  109,  §  24 ;  c.  100,  §  5 ;  Stat.  1874,  c.  352. 

*  See  Appendix,  form  No.  37.  *  Gen.  Sts.  c.  94,  §  5. 


REMOVAL   AND   RESIGNATION    OP   EXECUTORS,  ETC.      117 

dianship  is  no  longer  necessary .^  Such  application  of 
the  ward  may  be  resisted  by  the  guardian ;  and  all 
reasonable  expenses  incurred  by  him  in  good  faith  for 
the  purpose  of  a  proper  inquiry  into  the  condition  of 
the  ward,  will  be  allowed  to  him  in  the  settlement  of 
his  guardianship  account.^ 

1  Gen.  Sts.  c.  109,  §  26.     See  Appendix,  form  No.  39. 
a  Palmer  v.  Palmer,  1  Chandler  (N.  H.),  448. 


CHAPTER  IX. 

INVENTOBIES,   AND   THE   COLLECTION   OF  THE  EFFECTS 
OF  DECEASED  PERSONS   AND   WARDS. 

The  bonds  of  executors,  administrators,  guardians,  and 
trustees  contain  a  condition  that  the  party  giving  the 
bond  shall  return  into  the  probate  court  a  true  inventory 
of  all  the  estate  that  shall  come  to  his  possession  or 
knowledge.  Exceptions  to  this  rule  are  made  in  favor 
of  executors  who  are  residuary  legatees,  who  elect  to 
give  a  bond  for  the  payment  of  the  debts  and  legacies, 
and  run  their  own  risk  as  to  the  sufficiency  of  assets  ;  ^ 
and  in  favor  of  a  trustee  appointed  in  place  of  a  former 
trustee  who  has  deceased  or  has  been  removed,  or  has  re- 
signed, if  the  court  deems  an  inventory  unnecessary .^ 
Every  executor  and  administrator  is  required  to  return 
an  inventory  within  three  months  after  his  appoint- 
ment ;  ^  and  every  guardian  and  trustee  within  such 
time  as  the  court  may  direct.* 

The  inventory  is  equally  an  advantage  to  the  executor, 
or  other  trust  officer,  and  to  the  heirs,  creditors,  or  other 
persons  interested  in  the  estate.  It  is  the  basis  upon 
which  he  is  to  make  his  accounts.  It  shows  the  amount 
for  which  he  is  chargeable,  and  limits  his  responsibility, 
unless  there  are  assets  not  appraised  that  come  to  his 
hands.     On  the  other  part,  the  heirs  or  other  persons 

1  Gen.  St8.  c.  93,  §  3 ;  ante,  p.  69.         2  ibid.  c.  100,  §  IL 

»  Ibid.  c.  96,  §  L  <  Ibid.  c.  100,  §  1 ;  c.  109,  §  17. 


INVENTOEIES.  ETC.  119 

interested  have,  in  the  record  of  the  inventory,  the  best 
evidence  that  can  be  had  under  the  circumstances,  of 
the  value  of  the  estate  in  the  hands  of  the  trustee  ;  and 
it  furnishes  them  with  essential  evidence  in  case  it  be- 
comes necessary  to  institute  proceedings  against  him,  on 
account  of  any  misappropriation  of  the  property  or  other 
maladministration. 

The  inventory  should  include  all  the  real  estate,'  and 
all  the  goods,  chattels,  rights,  and  credits  belonging  to 
the  estate  appraised.^  All  notes  and  accounts  due  to  the 
estate  should  be  described  in  the  inventory.  Tlie  ap- 
praisers may  find  it  difficult  to  appraise  a  note  or  account, 
except  as  its  face  indicates  its  value,  and  for  this  reason 
many  administrators  deem  it  unnecessary  to  include 
either  notes  or  accounts  in  their  inventory,  and  consider 
it  sufficient  to  charge  themselves  with  the  proceeds  of  the 
debts  collected  in  their  accounts  of  administration.  This 
course,  if  pursued  in  good  faith,  can  work  no  wrong,  but 
it  does  not  fulfil  all  the  pui-poses  of  the  law  requiring  an 

1  It  is  not  the  duty  of  an  administrator,  at  the  request  and  for  the 
benefit  of  the  heirs  of  his  intestate,  to  inventory,  or  institute  proceedings 
to  recover  certain  real  estate  which  once  belonged  to  the  intestate,  but 
wliich  has  been  set  off  on  an  execution  issued  against  him  on  a  judgment 
obtained  by  fraud.  Riciiards  v.  Sweetland,  6  Cush.  324 ;  otlierwise,  wlien 
the  proceeds  of  land  fraudulently  conveyed  are  needed  for  the  payment  of 
debts  due  from  the  estate.  Andrews  v.  Tucker,  7  Pick.  250.  If  there 
was  any  specific  personal  property  in  the  hands  of  the  testator  belonging 
to  others,  wiiich  he  held  in  trust  or  otlierwise,  it  is  not  assets  in  the  hands 
of  his  executors,  but  is  to  be  held  by  tiie  executors  as  the  testator  him- 
self held  it.  But  if  the  testator  has  money  or  other  property  in  ids  hands 
belonging  to  others,  whether  in  trust  rrr  otherwise,  and  it  lias  no  ear-mark, 
and  is  not  distinguishable  from  the  mass  of  his  own  property,  the  party 
owning  it  must  come  in  as  a  general  creditor,  and  it  falls  within  the  de- 
scription of  assets  of  the  executor.     Trecothick  i'.  Austin,  4  Mason,  29. 

2  Corn  or  other  product  of  the  soil,  raised  annually  by  cultivation,  and 
in  a  proper  state  to  be  gathered,  is  personal  estate,  and  goes  to  the  exec- 
utor on  the  death  of  the  owner.     Penliallow  v.  Dwight,  7  Mass.  34. 


120      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

inventory  to  be  made.  The  administrator,  moreover, 
cannot  be  prejudiced  by  the  mention  of  notes  and  ac- 
counts in  the  inventory,  even  if  they  prove  to  be  worth- 
less, for  if  the}'  remain  uncollected  without  his  fault,  a 
credit,  corresponding-  in  amount  with  the  appraised  value 
of  the  worthless  debt,  will  be  allowed  him  in  his  ac- 
count.' 

Orders  for  the  Appraisal  of  Estates  are  issued  by  the 
probate  court.  The  appraisers  must  be  three  suitable, 
disinterested  persons.^  No  clerk  or  other  person  em- 
ployed in  the  office  of  the  probate  court  can  be  an  ap- 
praiser in  any  case  within  the  jurisdiction  of  the  court 
unless  his  appointment  is  requested  by  all  parties  in  in- 
terest.^ The  authority  of  appraisers  appointed  by  the 
probate  court  extends  to  the  appraisal  of  property  situ- 
ated in  any  part  of  the  State.  The  order  of  appraisal  is 
usually  issued  on  the  day  when  the  executor  or  other 
officer  is  appointed  and  upon  his  verbal  request. 

Any  disinterested  justice  of  the  peace  may  appoint 
appraisers  of  any  part  of  the  estate  which  may  be  in  his 
county.^ 

Oath  of  Appraisers.  Before  proceeding  to  appraise 
the  estate  the  appraisers  must  be  sworn  to  the  faithful 
discharge  of  their  duties.  The  oath  may  be  administered 
by  any  justice  of  the  peace,  and  a  certificate  thereof 
must  be  indorsed  on  the  order  by  the  justice  who  ad- 
ministers the  oath. 

Return  of  the  Inventory.  The  value  of  each  parcel  of 
real  estate  and  of  each  article  of  personal  property  should 
be  sepaiately  stated  in  the  inventory.  The  blanks  at- 
tached to  the  orders  of  appraisal  indicate  the  form  in 
which  the  return  is  to  be  made. 

1  Gen.  Sts.  c.  98,  §  6.  2  ibid.  c.  96,  §  2. 

8  Ibid.  c.  117,  §  32.       *  Ibid.  c.  96,  §  2.     See  Appendix,  form  No.  41. 


INVENTORIES,  ETC.  121 

If  the  deceased  had  been  a  member  of  a  copartnership, 
and  both  partnership  estate  and  separate  estate  have 
come  to  the  possession  of  the  executor,  such  partnership 
estate  should  be  separately  appraised  and  returned  in  a 
separate  list. 

The  estates  of  two  or  more  minors  under  guardianship 
of  the  same  person  should  be  returned  in  separate  sched- 
ules, if  the  minors  are  interested  in  different  jDroperty, 
or  have  unequal  interests  in  the  same  property. 

The  inventory,  when  completed  by  the  appraisers,  is 
delivered  to  the  executor  or  other  person  having  charge 
of  the  estate  appraised,  who  returns  it  to  the  probate 
office  for  record.  He  is  required  to  make  oath  that  it  is 
a  true  and  perfect  inventory  of  all  the  estate  that  has 
come  to  his  possession  or  knowledge.  The  oath  maybe 
administered  by  the  judge  or  register  of  probate,  in  or 
out  of  court,  or  by  any  justice  of  the  peace  ;  and  a  cer- 
tificate of  the  oath  must  be  made  on  the  inventory  by 
the  officer  who  administers  it,  and  recorded  with  the 
inventory. 

An  administrator  is  bound  to  return  only  one  inven- 
tory. If  additional  property  comes  to  his  hands,  he  is 
bound  to  account  for  it,  but  not  to  inventory  it.^ 

COLLECTION   OF   THE   EFFECTS. 

It  is  not  only  the  duty  of  the  executor  or  administra- 
tor to  point  out  to  the  appraisers  the  estate  that  has 
come  to  his  possession  or  knowledge,  but  to  take  such 
measures  as  may  be  necessary  for  the  collection  of  debts 
due  the  deceased,  and  for  the  recovery  of  any  money, 
goods,  effects,  or  other  estate  in  the  fraudulent  posses- 
sion of  other  persons.  The  statute  provides  a  process 
1  Hooker  v.  Bancroft,  4  Pick.  50. 


122      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

for  tlie  discovery  of  facts,  by  an  examination  in  the  pro- 
bate court,  which  may  be  advantageously  used  as  a  pre- 
liminary step  to  the  institution  of  a  suit  for  the  recovery 
of  property  fraudulently  withheld  from  the  estate.  The 
statute  provides  that, 

'•  Upon  complaint  made  to  the  probate  court  by  an 
executor,  administrator,  heir,  legatee,  creditor,  or  other 
person  interested  in  the  estate  of  a  person  deceased, 
against  any  person  suspected  of  having  fraudulently  re- 
ceived, concealed,  embezzled,  or  conveyed  away,  any 
money,  goods,  effects,  or  other  estate,  real  or  personal, 
of  the  deceased,  the  court  may  cite  such  suspected  per- 
son, though  he  is  executor  or  administrator,  to  appear 
and  be  examined  on  oath,  upon  the  matter  of  the  com- 
plaint. If  the  person  so  cited  refuses  to  appear  and 
submit  to  examination,  or  to  answer  such  interrogatories 
as  are  lawfully  propounded  to  him,  the  court  may  com- 
mit him  to  the  jail,  there  to  remain  in  close  custody 
until  he  submits  to  the  order  of  the  court.^  The  inter- 
rogatories and  answers  shall  be  in  writing,  signed  by  the 
party  examined,  and  filed  in  the  probate  court." 

Like  proceedings  may  be  had  upon  complaint  of  a 
guardian,  ward,  creditor,  or  other  person  interested  in 
the  estate  of  a  ward,  or  having  claims  thereto  in  expect- 
ancy as  heir  or  otherwise,  against  any  one  suspected  of 
having  fraudulently  concealed,  embezzled,  or  conveyed 
away  any  of  the  estate  of  the  ward.  The  suspected  per- 
son may  be  cited,  though  he  is  the  guardian.^ 

The  authority  given  to  the  probate  court  by  the  above 
pro\asions  extends  only  to  an  examination  for  the  pur- 
pose of  discovery.  Xo  other  power  is  given.  The  ex- 
amination is  not  to  be  controlled  by  other  evidence  ; 

1  Gen.  Sts.  c.  96,  §  6.     See  Appendix,  forms  42,  43. 

2  Ibid.  c.  100,  §  30;  Sherman  v.  Brewer,  11  Gray,  210. 


INVENTORIES,  ETC.  123 

nor  can  relief  be  directly  granted  upon  it  by  any  decree 
of  the  probate  court.  The  process  can  only  result  in  a 
disclosure  of  facts  to  serve  as  the  basis  of  other  proceed- 
ings.i 

^  Selectmen  of  Boston  v.  Boylston,  4  Mass.  322.  The  lapse  of  thirty 
years  since  the  transactions  inquired  into,  is  no  bar  to  sucli  examination. 
O'Dee  V.  MeCrate,  7  Greenl.  467. 

In  a  complaint  to  the  judge  of  probate,  for  embezzlement  of  the  estate 
of  a  person  deceased,  the  complainfint  having  described  himself  as  "ad- 
ministrator and  creditor,"  and  it  appearing  that  he  was  not  entitled  to  act 
as  administrator,  it  was  held  that  the  words  "administrator  and"  were 
material,  and  could  not  be  rejected  as  surplusage.  Arnold  v.  Sabin, 
4  Cush.  46;  Milner  v.  Leishman,  12  Met.  320. 

The  court  may  permit  the  party  cited  to  appear  and  be  assisted  by 
counsel  in  making  answers  to  the  interrogatories.  Martin  v.  Clapp,  99 
Mass.  470. 


CHAPTER  X. 

ALLOWANCES  TO  WIDOWS,   MINOR   CHILDEEN,   AND 
OTHERS. 

TO   WIDOWS   AND    MINOR   CHILDREN. 

"  The  articles  of  apparel  and  ornament  of  the  widow 
and  minor  children  of  a  deceased  person  shall  belong 
to  them  respectively. 

"  Such  parts  of  the  personal  estate  of  a  person  deceased 
as  the  probate  court,  having  regard  to  all  the  circum- 
stances of  the  case,  may  allow  as  necessaries  to  his 
widow,  for  herself  and  family  under  her  care,  or  if  there 
is  no  widow,  to  his  minor  children,  not  exceeding  fifty 
dollars  to  any  child ;  and  also  such  provisions  and  other 
articles  as  are  necessary  for  the  reasonable  sustenance  of 
his  family,  and  the  use  of  his  house  and  the  furniture 
therein,  for  forty  days  after  his  death,  shall  not  be  taken 
as  assets  for  the  payment  of  debts,  legacies,  or  charges 
of  administration."  ^ 

"  A  widow  may  remain  in  the  house  of  her  husband 
forty  days  after  his  death  without  being  chargeable  with 
rent."  2 

The  statute  thus  makes  the  apparel  and  ornaments  of 
the  widow  and  minor  children  of  a  deceased  person  their 
absolute  property,  and  secures  to  them  a  home  in  his 
house  for  forty  days  after  his  death,  with  such  provi- 
sions and  other  articles  as  are  necessary  for  their  reason- 

1  Gen.  Sts.  c.  96,  §§  4,  6.  2  ibid.  c.  90,  §  18. 


ALLOWANCES    TO    WIDOWS,  MINOR   CHILDREN,  ETC.      125 

able  sustenance  ;  and  in  addition  to  this  statute  allowance 
for  the  forty  days,  the  widow  or  minor  children  of  the 
deceased,  whether  he  was  a  housekeeper  or  not,  are 
entitled  to  an  allowance  for  necessaries,  when  their  cir- 
cumstances require  it,  from  his  personal  estate.  The 
power  of  the  probate  court  to  make  allowances  is  not 
limited  to  intestate  estates.  It  is  given  in  all  cases, 
provided  there  are  personal  assets  ft-om  which  the  allow- 
ance can  be  made.  An  allowance  may  be  granted, 
although  provision  was  made  for  the  widow  by  her  hus- 
band's will,  in  lieu  of  dower  and  accepted  by  her,  and 
although  the  executor,  being  also  residuary  legatee,  has 
given  bond  as  such  to  pay  the  debts  and  legacies.^  And 
the  widow  may  have  a  second  allowance  at  any  time 
before  the  personal  estate  is  exhausted.^ 

The  amount  to  be  allowed  the  widow  is  determined 
by  the  court  in  its  discretion.  There  is  no  rule  to  regu- 
late this  discretion,  and  no  rule  could  be  framed  to  meet 
the  great  variety  of  circumstances  upon  which  the 
allowance  depends.  The  amount  is  not  ordinarily  re- 
stricted to  a  sum  merely  sufficient  for  the  necessaries  of 
life,  nor  on  the  other  hand  is  it  to  be  increased  to  an  ex- 
tent inconsistent  with  the  object  of  the  allowance.  The 
allowance  is  intended  to  furnish  the  widow,  when  she  is 
left  in  distress  by  the  decease  of  her  husband,  with 
necessaries  for  her  support  for  a  reasonable  time,  within 
which  she  can  make  arrangements  for  her  own  support. 
It  is  not  intended  to  furnish  her  with  a  capital  for  business 
purposes,  or  to  establish  a  fund  from  which  a  permanent 
income  may  be  derived.  Any  and  all  facts  bearing  upon 
the  question  of  her  necessities  are  to  be  considered,  such 
as  the  amount  of  her  separate  property  and  means ;  ^ 

I  Williams  v.  Williams,  5  Gray,  24.        «  Hale  v.  Hale,  1  Gray,  518. 
8  IloUenbeck  v.  Pixlcy,  3  Gray,  521. 


126      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

the  fact  that  she  is  accustomed  to  earn  her  own  support, 
or  the  contrary ;  that  she  is  disabled  by  age,  or  other- 
wise ;  the  number  of  her  children  and  the  fact  of  their 
tender  age,  &c. 

The  value  of  the  estate,  as  shown  by  the  inventory 
and  by  additional  evidence,  is  to  be  regarded.  It  may 
be  that  the  personal  estate  has  been  materially  diminished 
by  gifts  made  by  the  deceased,  shortly  before  his  death, 
to  his  heirs  and  others,  while  the  new  duties  and  obli- 
gations imposed  upon  the  widow  are  not  lessened  l)y 
such  diminution.  In  sucli  case,  the  fact  that  sucli  gifts 
have  been  made  may  be  important  to  show  the  actual 
condition  of  the  estate  and  of  the  family.  But  facts  as 
to  the  sum  contributed  by  her  on  her  marriage,  to  her 
husband's  estate,  or  as  to  the  value  of  the  services  ren- 
dered to  him  and  his  family,  while  they  may  show  that 
she  is  equitably  entitled  to  a  considerable  share  of  his 
estate,  do  not  bear  upon  the  question  actually  at  issue, 
the  allowance  not  being  made  to  correct  an  injustice,  but 
to  provide  for  her  necessities.^ 

The  whole  of  the  personal  estate  may  be  given  to  the 
widow  as  an  allowance,  when  the  amount  is  not  so  great 
as  to  be  extravagant.^  She  is  entitled  to  a  reasonable 
allowance,  even  if  the  estate  is  insolvent ;  and  she  is 
entitled  to  the  amount  of  her  allowance  in  priority  to 
the  payment  of  her  husband's  debts,  expenses  of  his  last 
sickness  and  funeral,  and  the  charges  of  settling  his 
estate.^ 

Upon  the  petition  of  the  widow  or  children,  or  either 
of  them,  the  probate  court  may,  after  notice  to  all  parties 
interested,  make  a  reasonable  allowance  out  of  the  in- 

1  Adams  v.  Adams,  10  Met.  170;  ITollenbeck  v.  Pixley,  3  Gray,  525. 

2  Brazer  v.  Dean,  15  Mass.  183. 

•  Kingsbury  r.  Wilmartli,  2  Allen,  310. 


ALLOWANCES    TO    WIDOWS,  MINOR    CHILDREN,  ETC.       127 

come  of  the  estate,  real  or  personal,  in  the  hands  of  a 
special  administrator  appointed  on  account  of  the  pen- 
dency of  a  suit  concerning  the  prohate  of  a  will,  as  an 
advancement  for  their  sui)port,  not  exceeding  such  por- 
tion of  the  income  of  the  estate  as  the}^  would  be  entitled 
to  whether  the  will  is  finall}^  proved  or  not.  An  appeal 
from  the  decree  concerning  such  allowance  will  not  pre- 
vent the  payment  of  the  sum  decreed  if  the  petitioner 
gives  bond  to  the  special  administrator,  with  sureties 
approved  by  the  judge,  conditioned  to  repay  the  same  if 
the  decree  is  reversed. ^ 

In  all  other  cases  the  allowance  is  made  from  the  per- 
sonal property.  It  cannot  be  made  from  the  proceeds 
of  real  estate  sold  for  the  payment  of  debts,  for  the 
surplus  of  such  proceeds,  if  any,  is  required  by  statute 
to  be  treated  as  real  estate,  and  disposed  of  among  the 
same  persons  and  in  tlie  same  proportions  as  the  real 
estate  would  have  been  if  it  had  not  been  sold.^ 

The  petition  for  an  allowance  to  the  widow  or  minor 
children  sets  forth  the  fact  that  there  are  personal  assets 
belonging  to  the  estate  in  question  from  which  she  or 
they  are  entitled  to  an  allowance,  and  prays  that  an 
allowance  may  be  decreed  accordingly.  When  the  next 
of  kin  of  the  deceased  are  other  than  his  minor  children, 
notice  of  the  widow's  petition  is  usually  given  to  parties 
interested  before  a  decree  is  made.^ 

The  widow,  or  any  person  aggrieved  by  the  decree  of 
the  court  upon  her  petition,  may  appeal  to  the  supreme 

»  Gen.  Sts.  c.  94,  §§  9,  10. 

2  Il>i(].  c.  102,  §  44;  Hale  v.  Hale,  1  Gray,  523;  Haven  v.  Foster, 
9  Pick.  130. 

3  If  an  allowance  is  made  without  notice  to  tlie  parties  interested,  the 
Bupreine  court  of  probate  in  its  discretion  will  allow  an  appeal,  after  the 
expiration  of  thirty  days  upon  a  petition  filed  under  Gen.  Sts.  c.  117, 
§  11.     Wright  V.  Wright,  13  Allen,  207. 


128      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

court  of  probate ;  and  the  appeal,  except  when  the 
allowance  is  made  from  the  income  of  the  estate  in  the 
hands  of  a  special  administrator,  stays  all  proceedings 
under  the  decree  until  the  matter  is  determined  by  the 
supreme  court  of  probate. 

The  allowance  to  the  widow  for  necessaries  is  not 
to  be  confounded  with  her  distributive  share  of  her 
husband's  estate.  That  is  a  vested  right  of  property 
which  she  takes  by  a  title  as  high  as  that  of  a  child  or 
other  next  of  kin  ;  and  it  goes  to  her  personal  represen- 
tative.^ But  the  provision  for  necessaries  is  temporary 
in  its  nature  and  personal  in  its  character,  and  confers 
no  absolute  or  contingent  right  of  property  whicli  can 
survive  her.  If,  therefore,  an  appeal  is  taken  from  a 
decree  making  an  allowance,  and  she  dies  before  the 
appeal  is  entered  in  the  appellate  court,  all  further  pro- 
ceedings are  stayed ;  and  the  decree  of  the  probate 
court,  which  was  vacated  by  the  appeal,  cannot  be 
revived.2 

A  widow's  claim  for  an  allowance  made  to  her  may 
be  enforced,  after  demand  and  refusal,  by  an  action 
brought  by  her  against  the  executor.^ 

ALLOWANCES   TO    WIVES    OF     INSANE   PERSONS   UNDER 
GUARDIANSHIP. 

The  statute  provides  that  the  probate  court  for  the 
county  in  which  the  guardian  of  an  insane  j^erson  was 
appointed,  may  make  an  allowance  out  of  the  estate  of 
such  insane  person  for  the  support  of  his  wife,  to  be 
paid  to  her  by  the  guardian  during  the  continuance  of 

1  Foster  v.  Fifield,  20  Pick.  67. 

■•«  Adams  v.  Adams,  10  Met.  170;  Drew  v.  Gordon,  13  Allen,  120. 

»  Drew  V.  Gordon,  13  Allen,  120. 


ALLOWANCES   TO    WIDOWS,  MINOR   CHILDREN,  ETC.      129 

the  guardianship  in  such  manner  as  the  court  shall 
direct.^ 

Resort  is  not  often  had  to  proceedings  under  this  pro- 
vision of  the  statute.  It  is  the  duty  of  the  guardian  to 
provide  for  the  support  of  the  ward  and  his  family,  so 
far  as  the  ward's  estate  is  sufficient  therefor,  without 
any  order  of  the  court.  The  amount  proper  to  be  ex- 
pended for  their  support  can  generally  be  determined  by 
agreement  between  the  parties  interested.  It  is  only 
when  the  guardian  neglects  his  duty  in  this  respect  that 
the  wife  has  occasion  to  apply  to  the  court  for  an 
allowance. 

The  allowance  under  this  provision  is  not  limited 
merely  to  necessaries  for  the  wife.  It  is  intended  for 
her  support,  and  the  amount  of  the  allowance  must 
be  proportioned  to  the  condition  and  circumstances  of 
the  husband.  It  should  be  sufficient  for  her  support  in 
a  manner  consistent  with  the  prudent  use  and  manage- 
ment of  his  estate. 

The  order  of  the  court  fixing  the  amount  of  the 
allowance  may  also  direct  the  guardian  as  to  the  time 
and  manner  of  its  payment  to  the  wife.^ 

1  Stat.  1862,  c.  116.  2  gee  Appendix,  form  No.  44. 


CHAPTER  XI. 

SALE  OF  PERSONAL  ESTATE  BY  EXECUTORS  AND 
OTHERS. — INVESTMENTS  BY  GUARDIANS  AND  TRUS- 
TEES. —  COMPROMISE  OF  CLAIMS.  —  TEMPORARY  IN- 
VESTMENTS  BY   EXECUTORS,  &C. 

The  statute  provides  that  "  the  probate  court,  on 
application  made  by  the  executor,  administrator,  or  any 
person  interested  in  the  estate,  after  the  return  of  the 
inventor}^,  may  order  any  part  or  all  of  the  personal 
estate  to  be  sold  by  public  auction  or  private  sale,  as 
shall  be  deemed  most  for  the  interest  of  all  concerned  ; 
and  the  executor  or  administrator  shall  account  therefor 
at  the  price  for  which  it  sells."  ^ 

The  personal  property  is  generally  sold  by  executors 
and  administrators  without  any  previous  order  of  the 
court,  and  if  they  act  in  good  faith  and  with  sound  dis- 
cretion, the  interests  of  no  person  concerned  can  be 
injuriously  affected  by  such  proceeding.  The  subsequent 
approval  of  the  court  is  practically  equivalent  to  a  pre- 
vious order.  The  executor  or  administrator,  however, 
makes  a  sale  without  first  obtaining  license  at  his  own 
risk,  and  when  it  is  probable  that  the  property  cannot  be 
sold  for  its  appraised  value,  he  should  apply  to  the  court 
for  leave  to  make  the  sale,  and  thereb}'  limit  his  respon- 
sibility to  account. 

1  Gen.  Sts.  c.  98,  §  3.  Guardians  account  for  and  dispose  of  the  per- 
sonal estate  of  their  wards  in  like  manner  as  executors  and  administra- 
tors.    Ibid.  c.  109,  §  17. 


ARBITRATION    AND    COMPROMISE.  131 

Mortgages  of  land  and  the  debt  secured  thereby  are 
personal  estate  in  the  hands  of  the  administrator,  and  so 
are  lands  taken  on  execution  for  a  debt  due  the  testator 
or  intestate  ;  and  real  estate  so  held  in  mortgage  or  taken 
on  execution,  may  be  sold,  subject  to  the  right  of  re- 
demption, at  any  time  before  the  right  of  redemption  is 
foreclosed,  in  the  same  manner  as  personal  estate  of  a 
person  deceased.^ 

The  probate  court  upon  petition  of  the  executor  or 
administrator,  and  after  such  notice  thereof  to  the  parties 
interested  as  the  court  may  order,  and  a  hearing  thereon, 
may  for  the  purpose  of  closing  the  settlement  of  an 
estate,  license  the  executor  or  administrator  to  sell  and 
assign  any  outstanding  debts,  claims,  and  assets  which 
cannot  be  collected,  received,  or  determined  without  in- 
convenient delay.  The  petition  for  leave  to  make  such 
sale  or  assignment  should  set  forth  the  nature  of  the 
debt,  claim,  or  asset  to  be  sold,  and  the  reasons  for  the 
proposed  sale.^  The  sale  is  required  to  be  conducted  in 
such  manner  as  the  court,  having  regard  as  far  as  it  may 
be  thought  advisable  or  prudent  to  the  law  in  relation 
to  sales  of  real  estate  by  executors  and  administrators, 
shall  order.  This  provision  for  the  sale  of  debts  and 
claims  does  not  deprive  executors  and  administrators  of 
the  right  to  transfer  at  pleasure  deeds  of  mortgage,  and 
the -real  estate  conveyed  and  the  debts  secured  thereby.^ 

Probate  courts  may  authorize  executors,  administra- 
tors, guardians,  and  trustees,  to  release  and  discharge, 
upon  such  terms  and  conditions  as  appear  proper,  any 
vested,  contingent,  or  possible  right  or  interest  belong- 
ing to  the  persons  or  estates  b}'  them  represented  in  or 
to  any  real  or  personal  estate,  whenever  it  appears  to  be 

1  Gen.  Sts.  c.  %,  §§  9,  12.  2  gge  Appendix,  form  No.  46. 

«  Gen.  Sts.  c.  08,  §§  4,  5. 


132      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

for  the  benefit  of  the  persons  or  estates  in  trust.'  Notice 
of  the  application  in  such  cases  must  be  given  as  in  cases 
of  sale  of  real  estate. ^ 


SALES   AND   ESTVESTMEXTS   BY  GUARDIAJSTS   AND 

TRUSTEES. 

The  probate  court,  on  the  application  of  a  guardian 
or  any  person  interested  in  the  estate  of  a  ward,  after 
notice  to  all  other  persons  interested  therein,  may  author- 
ize or  require  the  guardian  to  sell  and  transfer  any  stock 
in  the  public  funds,  or  in  any  corporation,  or  any  other 
personal  estate  or  effects  held  by  him  as  guardian,  and 
invest  the  proceeds  thereof  and  all  other  moneys  in  his 
hands  in  real  estate,  or  in  any  other  manner  that  shall 
be  most  for  the  interest  of  all  concerned.  The  court 
may  make  such  further  order  and  give  such  directions 
as  the  case  may  require,  for  hianaging,  investing,  and 
disposing  of  the  estate  and  effects  in  the  hands  of  the 
guardian.^  And  on  the  application  of  a  trustee  under 
a  will  or  of  an}^  person  interested  in  the  trust  estate,  the 
court  may  authorize  or  require  such  trustee  to  sell  any 
personal  estate  or  effects  held  by  him  in  trust,  and  invest 
the  proceeds  and  any  other  trust  money  in  his  hands  in 
real  estate,  or  in  any  other  manner  most  for  the  interest 
of  all  concerned  therein.  And  the  court  may  from  time 
to  time  give  such  further  directions  as  the  case  may 
require  for  managing,  investing,  and  disposing  of  the 
trust  fund,  subject  to  the  provisions  of  the  will.* 

The  guardian,  trustee,  or  other  person  applying  for  an 
order  of  the  court  for  such  investment  should  represent 

1  Gen.  Sts.  c.  101,  §  11.  ^  stat.  18G3,  c.  230. 

8  Gen.  Sts.  c.  109,  §  22.     See  May  v.  May,  109  Mass.  252. 
<  Ante,  p.  109. 


ARBITRATION   AND   COJIPROMISE.  133 

in  his  petition  that  the  proposed  investment  will  be  for 
the  benefit  of  all  parties  interested,  and  should  describe 
the  personal  estate,  if  any,  to  be  sold,  and  the  property 
in  which  it  is  proposed  to  invest  the  proceeds  or  the 
money  in  the  hands  of  the  guardian  or  trustee. ^ 

PUECHASE   OF   INTEKESTS   IX  REAL  ESTATE  OF  WARDS. 

Probate  courts,  after  notice  to  all  persons  interested, 
may  authorize  guardians  to  purchase  and  obtain  the 
release  and  convej'ance  of  any  right  of  dower,  home- 
stead, life-estate,  estate  for  years,  or  any  interest,  vested 
or  contingent,  held,  possessed,  or  owned  by  any  person, 
in  or  to  any  real  estate  of  their  wards,  and  to  make  any 
contract  for  or  concerning  said  rights  or  interests  neces- 
sary to  effect  such  purchase  and  provide  for  the  payment 
of  the  consideration  thereof,  or  the  performance  of  any 
condition  thereof ;  and  also  to  bind  the  said  estates  of 
their  said  wards  by  mortgage  or  otherwise,  for  the  pur- 
pose aforesaid,  when  it  shall  appear  to  said  court  to  be 
for  the  interest  of  said  wards.^ 

ADJUSTMENT   OF   DEMANDS   BY  ARBITRATION  OR 
COMPROMISE. 

Probate  courts  may  authorize  executors,  administra- 
tors, guardians,  and  trustees,  to  adjust  by  arbitration  or 
compromise,  any  demands  in  favor  of  or  against  the 
estates  by  them  represented.^  The  executor  or  other 
officer  who  is  desirous  of  so  adjusting  a  claim  should 
present  a  petition  to  the  court  setting  forth  the  nature 
of  the  demand,  and  representing  that  it  can  be  adjusted 

1  See  Appendix,  form  No.  48.  "•«  Stat.  1869,  c.  219. 

8  Gen.  Sts.  c.  101,  §  10. 


13-4      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

bj  arbitiiitioii  or  compromise,  and  that  the  interests  of 
the  estate  represented  by  him  will  be  promoted  thereby.^ 
Any  adjustment  by  arbitration  or  compromise  without 
leave  of  the  court  first  obtained,  would  be  at  the  risk 
of  the  executor  or  other  person  making  it,  and  might 
give  rise  to  questions  upon  the  settlement  of  his  accounts 
in  the  probate  court. 

Controversies  between  different  claimants  to  the  estate 
in  the  hands  of  executors,  administrators,  guardians,  and 
trustees  may  be  settled  by  arbitration  or  compromise 
upon  application  to  the  supreme  judicial  court.^ 

TEMPOEAEY  .  INVESTMENTS    BY    EXECUTORS    AND 
.  ADIVUNISTRATORS. 

Any  probate  court  may,  upon  application  of  a  person 
interested  in  an  estate  in  process  of  settlement  in  such 
court,  direct  the  temporary  investment  of  the  money 
belonging  to  such  estate  in  securities  to  be  approved  by 
the  judge ;  or  may  authorize  the  same  to  be  deposited 
in  any  bank  or  institution  in  this  State,  empowered  to 
receive  such  deposits,  upon  such  interest  as  said  bank  or 
institution  may  agree  to  pay.^ 

1  See  Appendix,  form  No.  50. 

2  Stat.  18G1,  c.  174,  §  1.     See  Stat.  1864,  c.  173;  1865,  c.  186. 
8  Stat.  1873,  c.  224. 


CHAPTER  XII. 

NOTICE    OP    THE    APPOLNTMENT     OF     EXECUTORS,    &C., 
AND   PAYMENT   OF   DEBTS   AND   LEGACIES. 

The  statute  provides  that  "  every  executor  and  ad- 
ministrator, within  three  months  after  giving  bond  for 
the  discharge  of  his  trust,  shall  cause  notice  of  his 
appointment  to  be  posted  in  two  or  more  public  places 
in  the  city  or  town  in  which  the  deceased  last  dwelt ;  or 
he  may  be  required  by  the  probate  court  to  give  notice 
by  publishing  in  some  newspaper,  or  in  such  other  man- 
ner as  the  court,  taking  into  consideration  the  business 
of  the  deceased  and  the  circumstances  of  his  estate, 
shall  direct."  ^  The  letter  testamentary  or  of  adminis- 
tration, issued  to  the  executor  or  administrator,  directs 
the  manner  in  which  the  notice  is  to  be  given  in  each 
case.  A  strict  compliance  with  the  terms  of  the  order 
is  necessary,  in  connection  with  the  payment  of  debts, 
to  protect  the  interests  of  the  heirs  or  devisees  as  well 
as  of  the  executor  or  administrator.^  Unless  the  notice 
is  given,  the  statute  limiting  the  time  within  which  suits 
may  be  brought  against  the  executor  or  administrator 
will  not  apply. 

The  notice  having  been  given,  the  statute  provides  a 
sure  and  convenient  mode  of  perpetuating  evidence  of 

1  Gen.  Sts.  c.  97,  §  1. 

2  An  executor's  notice  is  suflScient,  tliougli  signed  by  Iiini  as  "  admin- 
istrator," and  lie  describes  Iiiniself  tlierein  as  "duly  appointed  adminis- 
trator."   Piuney  v.  Barnes,  07  Mass.  401. 


136      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

the  fact.  An  affidavit  of  the  executor  or  administrator, 
or  of  the  person  employed  b}'  him  to  give  such  notice, 
being  made  before  the  judge  or  a  justice  of  the  peace, 
and  filed  and  recorded  with  a  copy  of  the  notice  in  the 
probate  office,  within  one  year  after  giving  bond,  or  at 
any  time  afterwards  by  permission  of  the  court  upon 
petition  and  satisfactory  evidence  furnished  that  the 
notice  was  given  as  ordered,  is  made  evidence  by  statute, 
of  the  time,  place,  and  manner  in  which  the  notice  was 
given. ^  When  it  appears  that  such  affidavit  has  not 
been  made,  any  person,  on  petition  to  the  probate  court, 
may  be  permitted  to  make  it.^  The  fact  that  notice  was 
duly  given  may  be  proved  whenever  it  becomes  material 
by  other  evidence  ;  ^  but  questions  as  to  the  fact  of  notice 
may  not  be  raised  until  after  the  lapse  of  several  years, 
when  it  may  be  difficult  and  perhaps  impossible  for  the 
executor  or  administrator  to  show  his  compliance  with 
the  order  of  the  court  by  any  of  the  ordinary  means  of 
proof.  The  affidavit  should  therefore  be  made  and  re- 
corded in  every  case. 

If  by  accident  or  mistake  notice  is  not  given,  or  the 
evidence  is  not  so  perpetuated,  the  probate  court,  on  the 
petition  of  the  executor  or  administrator,  may  order  such 
notice  to  be  given  at  any  time  afterwards  ;  in  wliich  case, 
the  periods  of  time  limited  for  the  commencement  of 
actions  against  executors  and  administrators  and  for 
other  purposes,  and  which  begin  to  run  from  the  date  of 
the  administration  bond,  will  run  respectivel}'  from  the 
time  of  passing  such  order.  And  no  such  order  will 
exempt  the  executor  or  administrator  from  any  liability 
for  damages  incurred  by  reason  of  his  omission  to  give 
notice  within  the  three  months.* 

1  Gen.  Sts.  c.  97,  §  2,  Stat.  1876,  c.  76.        2  stat.  1876,  c.  71. 

3  Estes  V.  Wilkes,  16  Gray,  363.  *  Gen.  Sts.  c.  97,  §§  3,  4. 


NOTICE   OF   APPOINTMENT   OP   EXECUTOES,  ETC.       137 


PAYMENT   OF   DEBTS. 

Limitation  of  Actions  against  Executors  and  Admin- 
istrators. No  executor  or  administrator,  after  having 
given  notice  of  his  appointment,  as  required  by  law,  cau 
be  held  to  answer  to  the  suit  of  any  creditor  of  the 
deceased,  unless  it  is  commenced  within  two  years  from 
the  time  of  his  giving  bond,^  except  when  new  assets 
come  to  his  hand  after  the  expiration  of  the  two  years, 
in  which  case  he  is  liable  to  an  action  if  brought  within 
one  year  after  the  creditor  has  notice  of  the  receipt  of 
such  new  assets,  and  within  two  years  after  the  same  is 
actually  received.^  And  if  an  action  seasonably  com- 
menced fails  of  a  sufficient  service  or  return  by  unavoid- 
able accident ;  or  when  the  writ  in  such  action  is  abated 
or  defeated  for  a  defect  in  its  form,  or  by  a  mistake  in 
the  form  of  the  proceeding,  or  when  after  verdict  for  the 
plaintiff  judgment  is  arrested  ;  or  if  a  judgment  for  the 
plaintiff  is  reversed  on  a  writ  of  error,  the  plaintiff  may 
commence  a  new  action  for  the  same  cause  at  any  time 
within  one  year  after  the  abatement  or  other  determina- 
tion of  the  original  suit,  or  after  the  reversal  of  the 
judgment  therein.^ 

1  In  computing  the  two  years,  the  day  on  which  the  bond  is  given  is 
to  be  excluded.    Paul  v.  Stone,  112  Mass.  27. 

2  Gen.  Sts.  c.  97,  §§  5,  6.  See  Sturtevant  v.  Sturtevant,  4  Allen,  122 ; 
Veazie  v.  Marett,  6  Allen,  372;  Cheney  v.  Webster,  8  Allen,  76;  Alden 
V.  Stebbins,  'J'J  Mass.  616  ;  Welsh  v.  Welsh,  105  Mass.  229;  Robinson  v. 
Hodge,  117  Mass.  222.  The  operation  of  this  statute  is  not  suspended 
by  the  statute  provisions  relating  to  the  insolvent  estates  of  deceased 
persons.  Aiken  v.  Morse,  104  Mass.  277;  Blanchard  v.  Allen,  116  Mass. 
447. 

^  Gen.  Sts.  c.  97,  §§  5,  6,  7.  Bigelow  v.  Bemis,  2  Allen,  406.  An  ex- 
ecutor is  not  liable  as  such,  after  the  expiration  of  two  years  from  the 
time  of  his  giving  bond  to  an  action  on  a  covenant  of  warranty  in  a  deed 
from  his  testat(jr,  although  the  covenant  is  not  broken  until  after  the 
expiration  of  the  two  years  ;  and  although  the  executor  is  also  residuary 


138      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

Special  adniinistrators  are  not  liable  to  actions  by  any 
creditor  of  the  deceased ;  and  the  time  of  limitation  for 
all  suits  against  the  estate  begins  to  run  after  the  issue 
of  letters  testamentary  or  of  administration  in  the  usual 
form,  in  like  manner  as  if  such  special  administration 
had  not  been  granted.^ 

In  the  case  of  a  public  administrator  who  has  given 
a  general  bond  covering  all  estates  on  which  administra- 
tion is  granted  to  him,  the  limitation  begins  to  run,  as 
to  each  estate,  from  the  date  of  letters  of  adminis- 
tration.2 

A  new  administrator  appointed  on  the  death,  resigna- 
tion, or  removal  of  an  executor  or  administrator,  is  liable 
to  the  actions  of  creditors  for  two  years  after  he  gives 
bond,  unless  the  same  were  barred  under  the  previous 
administration.  If  he  fails  to  give  notice  of  his  appoint- 
ment in  the  manner  prescribed  for  original  administra- 
tors, he  will  have  no  benefit  of  the  statute  limitation. 
If  new  assets  come  to  his  hands  after  the  expiration  of 
the  two  years,  he  is  liable  on  account  of  such  new  assets, 
in  like  manner  as  an  original  executor  or  administrator.^ 

devisee  or  legatee,  and  gives  bond  for  tlie  payment  of  the  testator's  debts 
and  legacies,  and  takes  the  assets  to  himself  without  filing  an  inventory. 
Holden  v.  Fletcher,  6  Cush.  235. 

An  action  on  a  decree  of  the  probate  court  for  the  payment  of  a  bal- 
ance due  from  the  estate  of  a  deceased  guardian  to  his  ward  is  barred  by 
statute  1852,  c.  294  (Gen.  Sts.  c.  97,  §  5),  in  two  years  from  tlie  appoint- 
ment of  the  guardian's  administrator,  althougli  the  decree  was  not  ob- 
tained until  tlie  two  years  had  expired.  Bemis  v.  Bemis,  13  Gray,  559. 
Creditors  whose  claims  were  not  presented  within  tlie  time  limited  by 
law  may  recover  judgment  by  bill  in  equity.  Stats.  1801,  c.  174,  §  2 ; 
1863,  c.  235 ;  Garfield  v.  Bemis,  2  Allen,  445 ;  Waltham  Bank  v.  Wright, 
8  Allen,  121 ;  Bradford  v.  Forbes,  9  Allen,  245,  365 ;  Wells  v.  Child,  12 
Allen,  333 ;  Richards  v.  Child,  08  Mass.  284 ;  Allen  v.  Trustees  of  Ashley 
School  Fund,  102  Mass.  262;  Bigelow  v.  Morong,  103  Mass.  287. 

1  Gen.  Sts.  c.  94,  §  13.  2  ibid.  c.  95,  §  9. 

8  Gen.  Sts.  c.  97,  §§  12,  13,  14. 


NOTICE  OP  APPOINTMENT  OF  EXECUTORS,  ETC.   189 

Proceeding  when  the  Creditor  s  Right  of  Action  accrues 
after  the  two  years.  A  further  exception  to  the  rule 
limiting  actions  against  executors  and  administrators  to 
two  years  after  giving  bond,  is  made  by  the  statute  in 
favor  of  a  creditor  whose  right  of  action  does  not  accrue 
within  the  two  years.  A  creditor  holding  such  a  claim 
should  present  a  full  statement  of  it  in  writing  to  the 
probate  court  with  a  petition  for  such  an  order  relative 
thereto  as  the  law  provides.  And  the  court,  if  it  ap- 
pears on  examination  that  the  claim  is  justly  due  from 
the  estate,  will  order  the  executor  to  retain  in  his  hands 
sufficient  to  satisfy  it ;  or,  if  a  person  interested  in  the 
estate  offers  to  give  bond  to  the  alleged  creditor  with 
sufficient  surety  or  sureties  for  the  payment  of  the  de- 
mand in  case  it  is  proved  to  be  due,  the  court  may  order 
such  bond  to  be  taken  instead  of  requiring  assets  to  be 
retained.^ 

The  decision  of  the  probate  court  upon  the  claim  of 
such  creditor  is  not  conclusive  against  the  executor  or 
administrator,  or  other  person  interested  to  oppose  the 
allowance  thereof ;  and  they  cannot  be  compelled  to  pay 
the  same  unless  it  is  proved  to  be  due  in  an  action  com- 
menced by  the  claimant  within  one  year  after  it  becomes 
payable  ;  ^  or,  if  an  appeal  is  taken  from  the  decision  of 
the  probate  court,  in  an  action  commenced  within  one 

1  Gen.  Sts.  c.  97,  §  8.     See  Appendix,  forms  Nos.  52-54. 

2  Gen.  Sts.  c.  97,  §  9.  "  The  action  shall  be  brought  against  the  exec- 
utor or  administrator,  if  he  has  been  required  to  retain  assets  therefor  ; 
otherwise  upon  the  bond  given  by  the  persons  interested  in  the  estate. 
If  the  action  is  brought  on  the  bond,  the  plamtiff  shall  set  forth  his  orig- 
inal cause  of  action  against  tlie  deceased,  in  like  manner  as  would  be 
required  in  a  declaration  for  the  same  demand  against  executors  and  ad- 
ministrators, and  may  allege  the  non-payment  thereof  as  a  breach  of  the 
condition  of  the  bond;  anrl  the  defendant  may  answer  any  matter  of 
defence  that  would  be  available  in  law  against  the  demand  if  prosecuted 
in  the  usual  manner  against  the  executor  or  administrator."  Gen.  Sts. 
0.  97,  §§  10.  11. 


140      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

year  after  the  final  determination  of  the  proceedings  on 
the  appeal. 1  If  the  claim  was  not  presented  to  the  pro- 
bate court,  or,  if  presented,  was  not  allowed,  the  creditor 
may,  by  action  commenced  within  one  year  after  his 
right  of  action  accrues,  recover  the  same  against  the 
heirs  and  next  of  kin  of  the  deceased,  and  the  devisees 
and  legatees  under  his  will,  each  one  of  whom  is  liable 
to  the  creditor  to  an  amount  not  exceeding  the  value  of 
the  estate  that  he  received  from  the  deceased,  unless 
the  will  of  the  deceased  makes  other  provision  for  the 
payment  of  his  debts.^ 

When  Executors,  ^c,  may  -p ay  Debts  without  Personal 
Liability.  No  executor  or  administrator  can  be  held  to 
answer  to  a  suit  of  a  creditor  of  the  deceased,  if  com- 
menced within  one  year  after  he  gives  bond,  unless  it  is 
on  a  demand  that  would  not  be  affected  by  the  insol- 
vency of  the  estate,  or  is  brought  after  the  estate  has 
been  represented  insolvent  for  the  purpose  of  ascertain- 
ing a  contested  claim. ^  And  if,  within  the  year  after 
giving  notice  of  his  appointment,  he  does  not  have  notice 
of  demands  against  the  estate,  which  will  authorize  him 
to  represent  it  insolvent,  he  may  proceed  to  pa}' the  debts 
due,  without  any  personal  liability  on  that  account  to 
any  creditor  who  shall  not  have  given  notice  of  his  claim, 
although  the  estate  remaining  should  prove  insufficient 
to  pay  the  whole.* 

PAYMENT  OF  LEGACIES. 

The  probate  court  has  no  jurisdiction  of  the  questions 
to  whom,  or  at  what  time,  a  legacy  is  to  be  paid.     The 

1  Stat.  1871,  c.  238.  2  Qen.  Sts.  c.  97,  §  15,  c.  101,  §  32. 

3  This  provision  includes  an  executor  who  is  also  a  residuary  legatee, 
and  has  given  bond  to  pay  debts  and  legacies.  National  IJank  of  Troy 
V.  Stanton,  110  Mass.  439. 

*  Gen.  Sts.  c.  97,  §§  16,  17.  As  to  the  payment  of  debts  when  tho 
estate  is  insolvent,  see  post,  c.  xiii. 


NOTICE   OF   APPOINTMENT   OF    EXECUTORS,  ETC.        141 

executor  pays  the  legacies  under  the  authority  given 
him  by  the  will  of  the  deceased.  The  rule  adopted  by 
the  courts,  borrowed  from  the  civil  law,  requires  legacies 
to  be  paid,  when  the  will  prescribes  no  time  for  their 
payment,  after  the  expiration  of  one  year  from  the  tes- 
tator's death,  it  being  presumed  that  the  executor  will 
be  able  to  inform  himself  during  the  year  of  the  suf- 
ficiency or  insufficiency  of  the  estate  to  meet  the  demands 
upon  it.  As  a  general  rule,  interest  is  allowed  to  lega- 
tees after  the  expiration  of  the  year ;  ^  but  compound 
interest  is  not  allowable  if  it  does  not  appear  that  the 
failure  to  pay  arose  from  the  fault  of  the  executor.^ 
Demand  of  payment  is  not  necessary  to  entitle  the  leg- 
atee to  interest.^ 

If  the  executor  has  given  the  notice  of  his  appoint- 
ment required  by  law,  he  will  be  secure  against  the 
demands  of  creditors  at  the  end  of  two  years  after  the 
approval  of  his  bond  ;  and  if  an  executor,  or  adminis- 
trator with  the  will  annexed,  within  the  two  years,  is 
required  by  a  legatee  to  pay  the  whole  or  part  of  his 
legacy,  the  probate  court  may  protect  him  in  making 
such  payments,  by  requiring  such  legatee  to  first  give 
bond  to  the  executor  or  administrator  with  surety  or 
sureties  to  be  approved  by  the  court,  conditioned  to 
refund  the  amount  to  be  paid,  or  so  much  thereof  as 
may  be  necessary  to  satisfy  any  demands  that  may  be 
afterwards  recovered  against  the  estate  of  the  deceased, 
and  to  indemnify  the  executor  or  administrator  against 
all  loss  or  damage  on  account  of  such  payment.* 

1  Miller  v.  Congdon,  14  Gray,  114 ;  Brooks  v.  Lynde,  7  Alien,  64. 

2  Kent  V.  Dunham,  106  Mas8.  586. 

3  Ibid. 

*  Gen.  Sts.  c.  97,  §  21.     See  Appendix,  form  No.  55. 


CHAPTER  XIII. 

INSOLVENT   ESTATES   OF   DECEASED    PERSONS. 

"  When  the  estate  of  a  person  deceased  is  insolvent 
or  insufficient  to  pay  all  his  debts,  it  shall,  after  dis- 
charging the  necessary  expenses  of  his  funeral,  last  sick- 
ness, and  administration,  be  applied  to  the  payment  of 
his  debts  in  the  following  order  :  — 

"  First.  Debts  entitled  to  a  preference  under  the  laws 
of  the  United  States  ; 

"  Second.  Public  rates,  taxes,  and  excise  duties  ; 

"  Third.  Debts  due  to  all  other  persons. 

"  If  there  is  not  enough  to  pay  all  the  debts  of  any 
class,  the  creditors  of  that  class  shall  be  paid  ratably 
upon  their  respective  debts;  and  no  payment  shall  be 
made  to  creditors  *of  any  class  until  all  those  of  the  pre- 
ceding class  or  classes,  of  whose  claims  the  executor  or 
administrator  has  notice,  are  fully  paid."  ^ 

THE  REPRESENTATION  OF  INSOLVENCY. 

If  the  estate  is  insolvent  it  is  the  duty  of  the  executor 
or  administrator  to  represent  the  fact  to  the  probate 
court.  His  neglect  to  do  so  may  make  him  personally 
liable  to  creditors  of  the  deceased.  He  is  allowed  ample 
time  to  satisfy  himself  as  to  the  condition  of  the  estate. 
He  is  not  held  liable  to  answer  to  the  suit  of  any  cred- 

1  Gen.  St8.  c.  99,  §  1. 


INSOLVENT    ESTATES   OF   DECEASED   PERSONS.  143 

itor  commenced  within  one  year  after  he  gives  bond  for 
the  faithful  discharge  of  his  trust,  unless  the  demand  is 
one  that  would  not  be  affected  by  the  insolvency  of  the 
estate,  or  is  brought  after  the  estate  has  been  represented 
insolvent  for  the  purpose  of  ascertaining  a  contested 
claim. ^  If,  within  one  year  after  giving  notice  of  his 
appointment,  he  does  not  have  notice  of  demands  which 
will  authorize  him  to  represent  the  estate  insolvent,  he 
may  proceed  to  pay  the  debts  due  from  the  estate ;  and 
he  will  not  be  personally  liable  to  any  creditor  in  con- 
sequence of  payments  made  before  notice  of  his  demand. 
If  he  so  pays  away  the  whole  of  the  estate  before  notice 
of  the  demand  of  any  other  creditor,  he  is  not  required 
in  consequence  of  such  notice  to  represent  the  estate 
insolvent,  but  may  plead  that  he  has  fully  administered, 
and  be  discharged  on  proving  such  payments.^  Or,  if 
any  effects  remain,  and  such  remainder  is  insufficient  to 
satisfy  a  demand  of  which  he  afterwards  has  notice,  he 
is  liable  to  pay  only  so  much  as  may  then  remain ;  if 
there  are  two  or  more  such  demands,  which  together 
exceed  the  amount  of  assets  remaining,  he  may  then 
represent  the  estate  insolvent  and  pay  over  the  amount 
in  his  hands  to  such  persons  as  the  court  shall  order ; 

^  Gen.  Sts.  c.  97,  §  16.  But  he  is  accountable  for  money  paid  on  debts 
within  the  year,  though  without  the  knowledge  tliat  the  estate  was  insol- 
vent.    Cobb  V.  Muzzej',  13  Gray,  67. 

■  Gen.  Sts.  c.  97,  §§  17, 18 ;  Gushing  v.  Field,  9  Met.  180.  It  is  no  bar  to 
an  action  against  an  administrator,  on  a  debt  of  his  intestate,  that  he  gave 
due  notice  of  his  appointment,  and  had  no  notice  within  a  year  thereafter 
of  demands  against  tlie  estate  which  would  authorize  him  to  represent  it 
insolvent,  and  applied  in  payment  of  the  debts  of  the  deceased  all  the 
personal  and  a  sufficient  portion  of  the  real  estate  to  pay  the  debts  then 
ascertained;  and  that  the  heirs  at  the  same  time  sold  all  the  residue  of 
the  real  estate  ;  and  the  administrator  rendered  his  final  account  which 
was  allowed.  The  statute  applies  only  when  the  whole  of  the  estate  has 
been  exhausted.     Hildreth  v.  Marshall,  7  Gray,  167. 


144      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

but  creditors  who  have  been  previously  paid  cannot  be 
required  to  refund  any  part  of  the  amount  received  by 
them,^ 

Tlie  executor  or  administrator  is  not  to  wait  until  the 
claims  of  creditors  are  proved  at  the  law  before  he  makes 
his  representation  of  insolvency.  He  may  believe  that 
there  is  a  good  defence  against  a  claim  that  is  presented 
to  him ;  but  if  its  recovery  would  cause  insolvenc}-,  he 
should  represent  the  estate  insolvent.  If  he  suffers 
judgment  to  be  recovered  against  him  before  he  repre- 
sents the  estate  insolvent,  he  must  pay  the  full  amount 
of  the  judgment,  without  regard  to  the  amount  of  assets 
in  his  hands.  And  if,  on  demand  made  upon  liim  to  pay 
such  judgment,  or  to  show  property  of  the  deceased  to 
be  taken  in  execution,  he  neglects  or  refuses  so  to  do, 
he  and  his  sureties  are  liable  on  his  administration  bond 
to  a  suit  by  the  judgment  creditor,  although  the  estate 
is  in  fact  insolvent.  Having  had  full  opportunity  to 
ascertain  the  condition  of  the  estate,  and  having  allowed 
the  claim  to  be  prosecuted  to  final  judgment  without 
interfering  by  a  representation  of  insolvency,  the  law 
will  presume  that  he  has  the  means  in  his  hands  to 
satisfy  it.^ 

1  Gen.  Sts.  c.  97,  §  19 ;  Colgrove  v.  Robinson,  11  Met.  238.  This  provi- 
sion of  the  statute  applies  to  payments  made  offer  the  expiration  of  the  year. 
Kthe  executor,  «v7A/;i  a  year  after  giving  notice  of  his  appointment,  pays 
a  debt  of  his  intestate,  he  may,  if  the  estate  afterwards  proves  insolvent, 
recover  of  the  creditor  the  excess  of  the  sum  so  paid  over  the  amount 
awarded  to  the  creditor  by  commissioners  of  insolvency.  Heard  v.  Drake, 
4  Gray,  514;  Richards  v.  Nightingale,  9  Allen,  149.  The  administrator 
cannot  recover  unless  he  proves  the  insolvency  of  the  estate  by  a  com- 
mission of  insolvency  regularly  issued,  executed,  and  returned,  and  a 
dividend  declared  by  the  court.  Bascom  v.  Butterfield,  1  Met.  536.  See 
Austin  V.  Henshaw,  7  Pick.  46.  The  general  statute  of  limitations  will 
begin  to  run  against  the  claim  of  the  administrator  from  the  date  when 
the  dividend  is  ordered.     Richards  v.  Nightingale,  9  Allen,  149. 

2  Newcomb  v.  Goss,  1  Met.  333. 


INSOLVENT    ESTATES    OF    DECEASED    PERSONS.  145 

If  it  appears,  upon  the  settlement  of  the  administra- 
tion account  in  the  probate  court,  that  the  whole  estate 
which  has  come  to  the  hands  of  the  executor  has  been 
exhausted  in  paying  debts  p7'ef erred  hy  law,  such  settle- 
ment, the  statute  provides,  shall  be  a  sufficient  bar  to 
an}'-  action  brought  against  the  executor  or  administra- 
tor by  a  creditor  who  is  not  entitled  to  such  preference, 
although  the  estate  has  not  been  represented  insolvent.^ 
But  the  executor  or  administrator  who  undertakes  to 
pay  the  preferred  claims  without  first  making  a  represen- 
tation of  insolvency,  must  pa}-  them  strictly  in  the  order 
prescribed  by  statute.  The  assets  may  not  be  sufficient 
to  pay  all  the  preferred  debts,  and  in  such  case  the  sev- 
eral classes  of  creditors  must  be  paid  in  their  order. 
Taxes,  for  instance,  cannot  be  paid  until  the  two  anterior 
classes  of  creditors  have  been  fully  satisfied ;  and  if  the 
assets  are  not  sufficient  to  pay  all  the  debts  of  any  one 
class,  the  creditors  of  that  class  must  be  paid  ratably. 
It  seems  that  an  executor  who  is  residuary  legatee,  and 
who  has  given  bond  to  pay  the  debts  and  legacies,  can- 
not represent  the  estate  insolvent,  —  the  bond  is  a  con- 
clusive admission  of  sufficient  assets.^ 

The  representation  of  insolvency  must  be  addressed 
to  the  probate  court  in  the  county  in  which  the  executor 
or  administrator  was  appointed,  and  should  set  forth  the 
amount  of  the  indebtedness  of  the  estate,  so  far  as  it 
can  be  ascertained  (including  the  funeral  expenses, 
charges  of  administration,  and  the  allowance,  if  any, 
made  to  the  widow  or  minor  children),  and  the  amount 
of  the  assets  in  the  hands  of  the  executor  or  administiator. 
There  should  also  be  filed  a  list  of  the  claims  agaiust  the 
estate,  showing  tlie  name  of  each  creditor  and  the  sum 

1  Gen.  Sts.  c.  97,  §  20. 

2  Alger  V.  Colwell,  2  Gray,  404 ;  Jones  v.  RicharJson,  5  Met.  247. 

10 


146      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

claimed  I33'  each.  If  the  evidence  of  the  fact  of  insol- 
vency is  satisfactory,  the  court  will  appoint  two  or  more 
fit  persons  to  be  commissioners  to  receive  and  examine 
the  claims  of  creditors.^ 


TIME   ALLOWED   FOE,   PROOF   OF   CLAIMS. 

Six  months  are  allowed  after  the  appointment  of  the 
commissioners  for  the  creditors  to  present  and  prove 
their  claims ;  and  the  court  will  allow  such  further  time 
for  the  proof  of  debts,  not  exceeding  eighteen  months 
from  the  date  of  the  commission,  as  may  be  deemed 
necessary .2  Such  further  time  may  be  applied  for  in 
writing  by  any  creditor  M'ho  has  not  proved  his  claim. 
The  application  should  fully  set  forth  the  reasons  for 
which  it  is  made.^  The  commission  may  be  reopened  at 
any  time  within  the  eighteen  months,  although  the  re- 
turn of  the  commissioners  may  have  been  made  to  the 
probate  court ;  and  the  party  applying  for  such  exten- 
sion may  appeal  from  a  decree  of  the  court  denying  the 
prayer  of  his  petition.*  And  in  case  of  an  appeal  from 
the  commissioners,  if  it  appears  to  the  court  that  a  just 
distribution  of  the  estate  requires  a  longer  time  for  the 
proof  of  claims  than  eighteen  months,  further  time  may 
be  allowed  not  extending  more  than  one  month  beyond 

'  Or  the  court  may  proceed  to  receive  and  examine  the  claims,  instead 
of  appointing  commissioners.     Stat.  1873,  c.  252. 

Where  a  judge  of  probate  had  rejected  a  representation  of  insolvency 
made  by  an  administrator,  and  upon  a  second  application  which  the  ad- 
ministrator offered  to  support  by  legal  evidence,  again  refused  to  receive 
it,  giving  his  former  decision  as  a  reason  for  the  second  denial,  and  an 
appeal  was  taken,  he  was  directed  to  receive  the  evidence  and  thereupoii 
to  decree  according  to  law  and  the  justice  of  the  case.  Bucknam  i;. 
Phelps,  6  Mass.  448. 

-  Gen.  Sts.  c.  99,  §  4.  ^  ggg  Appendix,  form  No.  66. 

*  Walker  v.  Lyman's  Administrators,  6  Pick.  458. 


INSOLVENT    ESTATES    OF    DECEASED    PERSONS.       .    147 

the  final  decision  of  the  appeal.^  And  if  a  commissioner 
dies,  resigns,  fails  to  make  the  return  required  by  law, 
or  is  removed,  a  new  commissioner  may  be  appointed, 
and  in  such  case  the  time  for  making  proof  of  claims  is 
extended  six  months  from  the  appointment  of  such  new 
commissioner,^ 

Such  extensions  of  time,  however,  do  not  relieve 
a  creditor  from  the  obligation  to  commence  the  prose- 
cution of  his  claim,  either  at  law  or  before  commis- 
sioners within  two  years  from  the  time  when  bond  was 
given  by  the  administrator.  If  proceedings  are  not 
commenced  within  that  time  his  claim  will  be  barred, 
unless  it  can  be  proved  as  a  contingent  claim,  or  unless 
new  assets  come  to  the  hands  of  the  administrator  after 
the  expiration  of  the  two  years. ^ 

The  commissioners  cannot  allow  claims  after  the  ex- 
piration of  the  time  limited  by  statute  or  fixed  by  the 
court.* 

PROOF   OF   CLAIMS. 

The  warrant  issued  to  the  commissioners  contains 
instructions  for  their  formal  proceedings.  They  must 
first  be  sworn  to  faithfully  discharge  the  duties  of  their 
office.  The  oath  may  be  administered  by  any  justice  of 
the  peace,  and  a  certificate  thereof  should  be  made  by 
him  on  the  warrant,  to  be  returned  with  their  report. 
They  are  required  to  appoint  convenient  times  and  places 
for  their  meetings  to  receive  and  examine  claims,  and  to 
give  at  least  seven  days'  written  notice  of  the  time  and 
place  of  each  meeting,  by  mail  or  otherwise,  to  all  known 
creditors  of  the  deceased,  and  such  other  notice,  by 
publishing  in  some  newspaper  or  otherwise,  as  the  court 

1     Stat.  1863,  c.  217.  2  gtat.  1868,  c.  327. 

'  Aiken  v.  Morse,  104  Mass.  277.    *  Bascom  v.  Butterfield,  1  Met.  636. 


148  PROCEEDINGS    IN   THE    PROBATE    COURTS. 

may  order.^  The  executor  or  administrator  is  required 
to  furnish  them,  fourteen  days  at  least  before  their  first 
meeting,  the  names  and  residences  of  all  known  credit- 
ors. The  commissioners  hold  as  many  meetings,  within 
the  six  months,  as  are  necessary  for  the  complete  dis- 
charge of  the  trust  committed  to  them. 

The  commissioners  ma}^  require  any  claimant  to  make 
true  answers,  under  oath,  to  all  questions  relating  to  his 
claim,  and  if  he  refuses  to  take  such  oath,  or  to  answer 
fully  all  questions,  they  may  disallow  his  claim.  Either 
of  the  commissioners  may  administer  such  oath  to  tlie 
claimants  and  witnesses.^ 

The  commissioners  are  to  liquidate  and  balance  all 
mutual  demands  subsisting  between  the  deceased  insol- 
vent and  his  creditors.  If  the  balance  is  found  in  favor 
of  the  creditor  it  should  be  allowed  by  the  commission- 
ers and  included  in  their  report ;  but  if  the  balance  is 
found  to  be  against  the  creditor,  it  is  not  a  subject  of  their 
report,  which  is  to  include  claims  against  the  estate  only.^ 

Copartnership  debts  for  which  the  deceased  was  liable 
may  be  proved  against  his  estate.*  A  claim  payable 
absolutely  may  be  proved  before  its  maturity.^ 

1  See  Appendix,  form  No.  58.  2  Qen.  Sts.  e.  90,  §§  15,  16. 

3  When  tlie  defendant  in  a  suit  brought  by  the  administrator  of  an 
insolvent  estate  files  in  set-off  a  claim  larger  than  tliat  on  which  he  is 
sued,  he  is  entitled  to  judgment  for  tlie  balance,  and  need  not  present  his 
claim  to  the  commissioners.  The  judgment  is  to  be  presented  to  the 
judge  of  probate,  and  by  him  added  to  the  claims  allowed  by  the  com- 
missioners. Bigelow  V.  Foiger,  2  Met.  255.  In  such  suit  the  defendant 
may  set  off  a  note  whicii  falls  due  pending  the  suit,  though  not  due  when 
the  action  was  commenced.     Ibid. 

*  A  stipulation  in  partnership  articles  that  in  case  of  the  decease  of 
either  partner  the  business  may  be  carried  on  for  one  year  by  the  sur- 
vivor for  the  mutual  benefit  of  both  parties,  does  not,  in  case  of  the  death 


5  Haverhill  Loan  &  Fund  Ass.  i-.  Cronin,  4  Allen,  144. 


INSOLVENT   ESTATES    OF   DECEASED   PERSONS.  149 

A  creditor  whose  claim  is  secured,  or  partly  secured, 
by  mortgage  or  otherwise,  cannot  prove  his  full  claim 
before  the  commissioners  unless  he  first  surrenders  his 
security  for  the  benefit  of  the  estate.  But  he  may  be 
allowed  the  balance  of  his  claim  remaining  after  deduct- 
ing the  value  of  the  security.  Such  value  may  be  de- 
termined by  agreement  between  the  creditor  and  execu- 
tor, or  by  a  sale  of  the  security,  or  it  may  be  estimated 
by  the  commissioners.^ 

Interest  is  to  be  allowed  on  all  claims  expressly  bear- 
ing interest,  and  upon  claims  not  expressly  bearing 
interest  where  there  is  evidence  establishing  the  credit- 
or's right  to  receive  interest.  Upon  claims  not  bearing 
interest  and  not  matured  a  rebate  of  interest  is  to  be 
made.  The  common  practice  is  to  compute  this  allow- 
ance and  rebate  of  interest  to  the  date  of  the  death  of 
the  intestate.  Except  in  very  rare  cases,  it  is  immaterial 
whether  the  interest  stops  at  the  death  of  the  debtor  or 

of  one  partner,  justify  the  allowance  against  his  insolvent  estate  of  a  debt 
contracted  by  the  survivor  within  the  year,  with  one  who  had  notice  of 
the  death.  Stanwood  v.  Owen,  14  Gray,  195.  Payments  made  by  the 
surviving  partner  while  carrying  on  the  partnership  business  pursuant  to 
such  stipulation,  upon  an  account  some  items  of  which  were  contracted 
before,  and  some  after,  the  death  of  tlie  other  partner,  must  be  ajjplied 
to  the  discharge  of  the  first  items.  Ibid.  A  surviving  partner  may 
prove  a  claim  against  the  estate  of  his  deceased  partner.  Sparhawk  v. 
Russell,  10  Met.  307. 

1  Farnum  v.  Boutelle,  13  Met.  159;  Hooker  v.  Olmstead,  6  Pick.  481  j 
Middlesex  Bank  v.  Minot,  4  Met.  325;  Haverhill  Loan  &  Fund  Ass.  v. 
Cronin,  4  Allen,  144. 

But  this  rule  does  not  apply  to  a  case  where  the  collateral  security 
was  furnished  by  a  third  person  not  primarily  responsible  for  the  debt. 
A  widow  who  has  joined  with  her  husband  in  a  mortgage  of  her  separate 
estate  to  secure  his  debt,  which  she  has  paid  since  his  dcatli  for  the  pur- 
pose of  exonerating  her  estate,  may  prove  the  amount  before  the  conmiis- 
sioners.  And  a  creditor  may  prove  his  debt  without  first  surrendering  a 
mortgage  of  the  separate  estate  of  the  debtor's  wife,  which  lie  holds  as 
security.     Savage  v.  Winchester,  15  Gray,  453. 


150      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

at  a  later  day  in  the  settlement  of  the  estate,  inasmuch 
as  the  proportion  in  which  the  assets  are  distributed 
among  the  creditors  will  be  the  same  by  either  mode  of 
computation.  The  main  object  is  to  fix  n[)on  some  date 
to  which  the  affairs  of  the  deceased  shall  be  adjusted. 
But  cases  have  occurred  where  the  assets  have  proved 
more  than  sufficient  to  pay  the  debts  as  they  existed  at 
the  time  of  the  death  of  the  insolvent,  but  not  sufficient 
to  pay  them  with  interest  computed  to  the  time  of  the 
decree  of  distribution.  In  such  cases,  and  whenever  the 
equitable  distribution  of  the  assets  requires  it,  the  court 
will  add  interest  on  the  claims  allowed  to  the  time  of 
distribution.! 

It  is  the  duty  of  the  executor  or  administrator  to  op- 
pose the  allowance  of  all  claims  improperly  presented  to 
the  commissioners.  If  he  is  guilty  of  corrupt  conduct 
in  not  opposing  the  allowance  of  illegal  claims,  he  will 
be  liable  to  an  action  on  his  bond.^  He  should  be  pres- 
ent at  the  meetings  of  the  commissioners,  and  should 
take  an  appeal  from  their  decision  whenever  an  appeal 
is  necessary  to  protect  the  rights  of  persons  interested 
in  the  estate. 

The  claim  of  an  executor  or  administrator  against  the 
estate  which  he  administers  should  be  presented  for  al- 
lowance to  the  probate  court,  not  to  the  commissioners. 

RETURN   OF   THE   COMMISSIONERS. 

At  the  expiration  of  the  time  limited  for  the  proof  of 
claims  the  commissioners  are  required  by  law  to  make 
their  return  to  the  probate  court,'^and  performance  of  that 

1  Williams  v.  American  Bank,  4  Met.  317. 

2  Parsons  v.  Mills,  2  Mass.  80. 

3  It  is  the  duty  of  the  commissioners  to  make  their  own  return  to  the 


INSOLVENT   ESTATES    OF    DECEASED    PERSONS.  151 

duty  ma\"  be  cornpelled,  on  motion  of  any  party  inter- 
ested, by  the  order  of  the  court  which  appointed  them.^ 
Their  return  must  give  a  list  of  all  the  claims  presented 
to  them,  whether  allowed  or  not,  with  the  sum  allowed 
on  each,  stated  in  separate  classes,  as  follows:  first,  debts 
entitled  to  a  preference  under  the  laws  of  the  United 
States  ;  second,  public  rates,  taxes,  and  excise  duties  ; 
third,  debts  due  to  all  other  persons.  Debts  proved 
against  the  deceased  as  a  member  of  a  partnership  firm 
must  be  stated  in  a  separate  list. 

If  the  executor  or  administrator  has  settled  his  ac- 
counts in  the  probate  court,  the  final  distribution  of  the 
balance  in  his  hands  may  be  ordered  after  the  expiration 
of  thirty  days  from  the  return  of  the  commissioners,  and 
the  settlement  of  the  estate  completed,  unless  there  are 
contingent  debts  which  could  not  be  proved  before  the 
commissioners,  or  unless  an  appeal  is  taken  from  some 
decision  of  the  commissioners. 


PROVISIONS  AS   TO   CONTINGENT   CLAIMS. 

The  statute  provides  that  "  if  at  the  return  of  the 
commission  any  person  is  liable  as  a  surety  for  the  de- 
ceased, or  has  any  other  contingent  claim  against  his 
estate  which  could  not  be  proved  as  a  debt  under  the 
commission,  the  court  upon  proof  thereof  shall,  in  order- 
ing a  dividend,  leave  in  the  hands  of  the  executor  or 
administrator  a  sum  sufficient  to  pay  to  such  contingent 

probate  court.  It  is  no  part  of  the  official  duty  of  the  administnitor  to 
receive  tlie  report  of  the  commissioners  and  carry  or  send  it  to  the  judge 
of  probate  ;  if  he  receives  the  report  ami  undertakes  to  return  it,  tliis  is 
merely  a  personal  engagement  for  tiie  perfbrniance  of  wliich  the  sureties 
in  his  bond  are  not  bound.  Nelson  v.  Woodbury,  1  Greenl.  251. 
»  Blanchard  v.  Allen,  110  Mass.  447. 


152      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

creditor  a  proportion  equal  to  what  shall  then  be  paid 
to  the  other  creditors.  If  such  contingent  debt  becomes 
absolute  within  four  years  from  the  date  of  the  adminis- 
tration bond,  it  may  be  allowed  by  the  probate  court  if 
not  disputed  by  the  executor  or  administrator  ;  and  if 
disputed,  it  may  be  proved  before  the  commissioners 
already  appointed  or  others  to  be  appointed  by  the 
judge,  in  like  manner  as  if  presented  before  the  first 
return  of  the  commissioners.  Upon  the  allowance  of 
such  claim,  the  creditor  shall  be  entitled  to  a  dividend 
thereon  equal  to  what  has  been  paid  to  the  other  credit- 
ors, so  far  as  the  same  can  be  paid  without  disturbing 
the  former  dividend  ;  and  if  his  claim  is  not  finally  es- 
tablished, or  if  the  dividend  due  to  him  does  not  exhaust 
the  assets  in  the  hands  of  the  executor  or  administrator, 
the  residue  of  the  assets  shall  be  divided  among  all  credit- 
ors who  have  proved  their  debts."  ^ 

These  provisions  of  the  statute  apply  only  to  cases 
where  the  claim  is  one  that  could  not  be  proved  as  a 
debt  under  the  commission.  Tlie  surety  on  a  promis- 
sorj'  note  made  by  the  deceased  which  has  been  proved 
against  the  estate  b}^  the  person  holding  it,  cannot  have 
such  a  contingent  claim.  His  claim  against  the  estate 
could  liave  been  proved  by  him.  He  could  have  paid 
the  holder,  made  the  note  his  own  property,  and  proved 
it  as  his  own  claim.  Moreover,  the  holder  who  proved 
the  note  will  take  the  entire  dividend  allowed  upon  it, 
and  the  claim,  so  far  as  the  insolvent  estate  is  concerned, 
will  be  extinguished  by  the  dividend  paid  to  him.  The 
surety  cannot  also  take  a  dividend  on  the  same  debt. 
The  statute  refers  to  cases  where  the  holder  of  the  debt 
cannot,  from  some  cause,  prove  his  debt  under  the  com- 

1  Gen.  Sts.  c.  99,  §§  5,  6,  7. 


INSOLVENT   ESTATES    OF   DECEASED   PERSONS.  153 

mission,  or  where  the  surety  cannot  make  the  debt  his 
own  by  payment.^ 

APPEALS   FROM   DECISIONS   OF   THE   COMMISSIONERS. 

The  determination  of  the  commissioners  is  not  neces- 
sarily conclusive  in  any  case.  Any  person  whose  claim 
is  disallowed  in  whole  or  in  part,  and  any  executor  or 
administrator,  and  any  heir,  legatee,  devisee,  or  creditor 
of  the  insolvent  estate,  who  is  dissatisfied  with  the  allow- 
ance of  a  claim,  may  appeal  from  their  decision,  and  the 
claim  will  thereupon  be  determined  at  common  law  in 
the  count}^  in  which  the  probate  or  administration  was 
granted.2  The  appeal  is  not  taken  from  any  order  of 
the  probate  court,  but  from  the  decision  of  the  commis- 
sioners. If  the  demand  exceeds  the  sum  of  three  thou- 
sand dollars  in  the  county  of  Suffolk,  or  one  thousand 
dollars  in  any  other  county,  the  appeal  is  taken  to  the 
supreme  judicial  court;  otherwise  to  the  superior  court.^ 
The  appeal  must  be  claimed  and  notice  thereof  given  at 
the  probate  office  within  thirty  days  after  the  return  of 
the  commissioners.*  If  the  appeal  is  by  an  executor  or 
administrator  he  must  give  notice  thereof  to  the  creditor 
within  said  thirty  days.^  The  appeal  must  be  entered  at 
the  court  appealed  to  held  next  after  the  expiration  of 
the  thirty  days. 

1  Cummings  v.  Thompson,  7  Met.  132;  French  v.  Hayward,  16  Gray, 
612 ;  Sears  v.  Willis,  7  Allen,  430. 

2  Gen.  Sts.  c.  99,  §  8 ;  Stat.  180-5,  c.  2.58. 

3  Gen.  Sts.  c.  99,  §  8 ;  Waters  v.  Randall,  8  Met.  1.32. 

*  Gen.  Sts.  c.  99,  §  9.  When  the  time  for  proof  of  claims  is  extended, 
an  appeal  from  a  decision  of  the  commissioners  disallowing  the  claim  of 
a  creditor  may  he  filed  within  thirty  days  after  their  final  return,  though 
such  claim  was  presented  and  disallowed  hefore  the  first  return  of  the 
warrant.     Merriam  v.  Leonard,  0  Cusli.  151. 

6  Gen.  Sts.  c.  99,  §  9.     See  Appendix,  forms  Nos.  69,  60. 


154      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

At  the  term  of  court  at  whicli  tlie  appeal  is  entered, 
the  supposed  creditor  must  file  a  statement  in  writing 
of  his  claim,  setting  forth  briefly  and  distinctly  all  the 
material  facts  which  would  be  necessar}^  in  a  declaration 
for  the  same  cause  of  action  ;  and  like  proceedings  are 
thereupon  had  in  the  pleadings,  trial,  and  determination 
of  the  cause,  as  in  an  action  at  law  prosecuted  in  the 
usual  manner,  except  that  no  execution  is  awarded 
against  the  executor  for  a  debt  found  due  to  the  claim- 
ant. The  final  judgment  is  conclusive,  and  the  list  of 
debts  allowed  by  the  commissioners  will  be  altered  if 
necessary  to  conform  thereto. ^ 

The  party  prevailing  upon  the  appeal  is  entitled  to 
costs,  which,  if  recovered  against  the  executor  or  ad- 
ministrator, may  be  allowed  to  him  in  his  administra- 
tion account.^ 

The  statute  provides  that  any  person  whose  claim  is 
disallowed  by  the  commissioners,  and  who  for  other 
cause  than  his  own  neglect  omits  to  claim  or  prosecute 
his  appeal  as  above  stated,  may,  by  petitioning  the  su- 
preme judicial  court  holden  in  any  county,  be  allowed 
to  claim  and  prosecute  his  appeal  upon  such  terms  as  the 
court  shall  impose,  if  it  appears  that  justice  requires  a 
further  examination  of  his  claim  ;  but  such  petition  must 
be  presented  within  two  years  after  the  date  of  the 
administration  bond.^  The  petition  in  such  case  should 
set  forth  particularly  the  nature  of  the  claim  and  the 
reason  of  the  petitioner's  omission  to  reasonably  claim 
and  prosecute  his  appeal. 

The  allowance  of  such  appeal  cannot  disturb  any 
distribution  ordered  before  notice  of  the  petition,  or 
notice  of  the  intention  to  present  the  same  has  been 

1  Gen.  Sts.  c.  99,  §  10.  -'  Ibid.  §  12. 

8  Ibid.  §  13 ;  Cross  i--.  Cross,  7  Met.  211. 


INSOLVENT   ESTATES   OF   DECEASED   PERSONS.         155 

given  in  writing  at  the  probate  office,  or  to  the  executor 
or  administrator  :  but  the  debts  thus  proved  and  allowed 
are  paid  only  out  of  such  assets  as  remain  in  or  come 
to  the  hands  of  the  executor  or  administrator  after 
paj^ment  of  the  sums  due  on  such  prior  decree  of  dis- 
tribution.^  The  party  who  intends  to  petition  for  leave 
to  prosecute  his  appeal  should  therefore  give  immediate 
notice  at  the  probate  office,  or  to'  the  executor,  of  his 
intention  to  present  the  same.  The  effect  of  such 
notice,  if  distribution  has  not  already  been  ordered,  may 
be  to  materially  increase  the  amount  of  his  dividend. 

WAIVER    OF   APPEAL,    AND   AEBITEATION. 

After  the  claiming  of  an  appeal  from  a  decision  of 
the  commissioners,  the  parties  may  waive  a  trial  at  law 
and  submit  the  claim  to  the  determination  of  arbitra- 
tors to  be  agreed  on  between  them,  and  appointed  ac- 
cordingly by  a  rule  of  the  probate  court.  The  report 
of  such  arbitrators,  if  accepted  by  the  court,  will  be 
conclusive  in  like  manner  as  a  judgment.^ 

The  executor  and  the  creditor,  if  they  agree  to  sub- 
mit the  claim  to  arbitration,  should  join  in  a  written 
representation  of  the  fact  to  the  court,  and  state  therein 
the  names  of  the  arbitrators  agreed  upon.^  The  arbi- 
trators must  notify  the  parties  of  the  time  and  place 
fixed  for  the  hearing,  and  after  the  hearing  return  to 
the  court  their  award,  with  the  rule  and  any  papers 
issued  therewith.  They  should  also  return  a  certificate 
of  the  costs  of  the  arbitration. 

The  arbitrators  have  no  power  to  award  that  the 
claimant  is  in  fact  indebted  to  the  estate.     They  are  to 

1  Gen.  Sts.  c.  'J'J,  §  14.  2  ibid.  §  11. 

*  See  Appendix,  form  Nos.  61-64. 


loG      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

find  onl}'^  what  amount,  if  any,  is  clue  from  the  estate  to 
the  chiimant.^ 

DISTRIBUTION   OF   INSOLVENT   ESTATES. 

After  the  expiration  of  thirty  days  from  the  return 
of  the  commissioners,  the  probate  court  decrees  the  dis- 
tribution of  the  assets  in  the  hands  of  the  executor 
among  the  creditors  whose  claims  have  been  allowed. 
If  before  making  the  decree  the  court  has  notice  of  an 
appeal  from  the  commissioners,  then  claimed  or  pending, 
the  decree  may  be  suspended  until  the  determination  of 
the  appeal,  or  a  distribution  may  be  ordered  among  the 
creditors  whose  debts  are  allowed,  leaving  in  the  exec- 
utor's hands  a  sum  sufficient  to  pay  the  claimant  whose 
demand  is  disputed  a  portion  equal  to  that  of  tlie  other 
creditors. 

Dividends  may  be  ordered  and  paid  to  creditors  whose 
claims  have  been  allowed  whenever  the  court  ma}'  deem 
it  proper,  leaving  in  the  hands  of  the  executor  or  ad- 
ministrator a  sum  sufficient  to  pay  claims  that  may  prob- 
ably be  proved  a  proportion  equal  to  what  shall  be  then 
paid  to  the  other  creditors.^ 

If  the  whole  assets  are  not  distributed  upon  the  first 
decree,  or  if  further  assets  come  to  the  hands  of  the 
executor  or  administrator,  the  probate  court  mmII  make 
such  further  decrees  for  distribution  as  the  case  requires.^ 

No  final  distribution  can  be  made  until  the  accounts 
of  the  executor  or  administrator  are  settled  in  the  pro- 
bate court,  and  the  sum  to  be  distributed  thereby  ascer- 
tained. His  accounts  should  be  settled  at  the  earliest 
day  practicable  after  the  return  of  the  commissioners  is 
made,  and  he  may  be  liable  on  his  bond  for  neglect  in 

1  Gilraore  v.  Hubbard,  12  Cush.  220.  2  Stat.  1868,  c.  327. 

3  Gen.  Sts.  c.  99,  §  19 ;  White  v.  Swain,  3  Pick.  365. 


INSOLVENT   ESTATES   OF   DECEASED   PERSONS.  157 

this  particular.  The  statute  provides  that  if  an  execu- 
tor or  administrator  neglects  to  render  and  settle  his 
accounts  in  the  probate  court  within  six  months  after  the 
return  made  by  the  commissioners,  or  the  final  liqui- 
dation of  the  demands  of  the  creditors,  or  within  such 
further  time  as  the  court  shall  allow,  such  neglect  shall 
be  deemed  unfaithful  administration,  and  he  may  be 
forthAvith  removed,  and  shall  be  liable  in  a  suit  on  his 
bond,  for  all  damages  occasioned  by  his  default.^ 

In  making  the  distribution,  the  preferred  creditors,  if 
the  assets  are  sufficient,  are  paid  in  full,  in  the  order 
required  by  statute.  If  there  is  not  enough  to  pay  all 
the  debts  of  any  one  class,  the  creditors  of  that  class  are 
paid  ratably  upon  their  respective  debts.  The  balance 
remaining  after  the  payment  of  the  preferred  claims  is 
distributed  ratably  among  the  other  creditors.  If  the 
deceased  had  been  a  member  of  a  copartnership,  and 
died  in  possession  of  both  separate  and  partnership 
estate,  and  was  indebted  as  a  partner  as  well  as  on  pri- 
vate account,  his  partnership  debts  are  payable  from  the 
partnership  estate  and  his  separate  debts  from  his  sepa- 
rate estate.  If  there  is  a  balance  of  the  separate  estate 
after  the  payment  of  his  separate  debts,  it  is  added  to 
the  joint  stock  for  the  payment  of  the  joint  creditors. 
If  there  is  a  balance  of  the  joint  stock  after  the  payment 
of  the  joint  debts,  it  is  divided  among  the  separate 
estates  of  the  partners  according  to  their  respective 
interests  therein,  as  it  would  have  been  if  the  partner- 
ship had  been  dissolved  without  insolvency  ;  and  the  sum 
so  appropriated  to  the  separate  estate  of  each  partner  is 
applied  to  the  payment  of  his  separate  debts.^ 

1  Gen.  St9.  c.  99,  §  26. 

2  Il>i.l.  §  18 ;  c.  118,  §  109 ;  Howe  v.  Lawrence,  9  Cush.  553 ;  Fall  River 
Wlialing  Co.  v.  Borden,  10  Cuah.  468. 


158      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

The  order  of  distribntion  directs  the  executor  or 
administrator  to  pay  the  balance  in  his  hands  to  the  per- 
sons named  in  the  order,  and  specifies  the  sum  to  which 
each  is  entitled.  He  is  also  directed  to  give  notice  to 
each  creditor  of  the  amount  of  his  dividend,  and  if  any 
of  the  sums  which  he  is  ordered  to  pay  remain  for  six 
months  unclaimed,  to  deposit  the  same  in  a  savings-bank 
(designated  in  the  order)  in  the  name  of  the  judge  of 
probate  for  the  time  being,  to  accumulate  for  the  benefit 
of  the  person  entitled  thereto.^ 

When  the  executor  or  administrator  has  paid  over  or 
deposited  the  money  in  his  hands  as  required  by  the 
decree  of  distribution,  he  may  perpetuate  the  evidence 
thereof  by  presenting  to  the  probate  court,  within  one 
year  after  the  decree  was  made,  an  account  of  such  pay- 
ments, which,  being  proved  to  the  satisfaction  of  the  court 
and  verified  by  the  oath  of  the  part}',  is  allowed  as  his 
final  discharge.  He  may  conveniently  make  such  ac- 
count by  returning  the  original  decree,  with  the  receipts 
of  the  several  creditors  and  the  certificates  of  deposit  an- 
nexed thereto,  together  with  his  own  certificate  that  the 
several  payments  have  been  made  as  ordered. 

After  twenty  years  from  the  decree  of  distribution  of 
an  insolvent  estate,  the  probate  court,  on  application  of 
any  creditor  whose  claim  was  proved  and  allowed,  and 
after  notice  of  such  application  published  for  not  less 
than  two  years  on  «uch  days  as  the  court  shall  direct, 
in  one  or  more  newspapers  of  the  county,  may  order  any 
unclaimed  dividends  with  the  interest  received  thereon, 
after  deducting  all  expenses  and  charges  of  administra- 

•  When  the  person  entitled  to  the  money  deposited  satisfies  the  judge 
of  his  right  to  receive  the  same,  the  judge  causes  it  to  be  paid  over  and 
transferred  to  him.  Gen.  Sts.  c.  101,  §  9.  See  Appendix,  forms  No. 
73.  74. 


INSOLVENT    ESTATES    OF   DECEASED   PERSONS.  159 

tion  since  the  decree  of  distribution,  to  be  distributed 
anew  among  the  creditors  who  have  received  their  divi- 
dends. If  there  is  a  surplus  after  satisfying  the  claims 
of  such  creditors  with  interest,  it  will  be  distributed  to 
the  heirs  of  the  deceased.^ 


ACTIONS    BY    CREDITOES   AFTER    THE    REPRESENTATION 
OF  INSOLVENCY. 

After  the  representation  of  insolvency  and  the  ap- 
pointment of  commissioners,  the  law  will  not  permit 
any  of  the  assets  of  the  estate  to  be  taken  from  the 
executor  or  administrator  by  legal  process,  to  satisfy 
the  demand  of  any  creditor,  until  the  question  of  in- 
solvenc}''  is  determined.  No  action  can  be  maintained 
unless  for  a  demand  entitled  to  a  preference,  or  unless 
the  assets  prove  more  than  sufficient  to  pay  all  the  debts 
allowed  by  the  commissioners.  If  the  estate  is  repre- 
sented insolvent  wliile  an  action  is  pending  for  any  de- 
mand not  entitled  to  such  preference,  the  action  can  be 
discontinued  without  payment  of  costs  ;  or,  if  the  de- 
mand is  disputed,  the  action  may  be  tried  and  deter- 
mined, and  judgment  rendered  thereon,  in  the  same 
manner  and  with  the  same  effect  as  in  the  case  of  an 
appeal  from  the  award  of  commissioners  ;  or  the  action 
may  be  continued  without  costs  until  it  appears  whether 
the  estate  is  insolvent,  and,  if  not  insolvent,  the  plaintiff 
may  prosecute  the  action  as  if  no  such  representation  had 
been  made.^ 

1  Gen.  St8.  c.  99,  §  27. 

2  Ibid.  §  20 ;  Gushing  v.  Field,  9  Met.  180 ;  Johnson  v.  Ames,  6  Pick. 
830 ;  Hunt  v.  Whitney,  4  Maes.  624. 


160  PROCEEDINGS    TN    THE    PROBATE    COURTS. 

RECOVERY  OF  CLAIISrS   NOT  PROVED  BEFORE  THE 
COMMISSIONERS. 

Every  creditor  of  an  insolvent  estate  who  does  not 
present  his  claim  for  allowance  will  be  barred  from  re- 
covering it,  unless  further  assets  come  to  the  hands  of 
the  executor  or  administrator  after  the  decree  of  dis- 
tribution ;  in  such  case  his  claim  may  be  proved  and 
paid  in  the  manner  and  with  the  limitations  provided 
for  contingent  debts.-^  When  such  further  assets  come 
to  the  estate,  the  probate  court,  on  application  of  such 
creditor,  may  open  the  commission.  The  creditor's  peti- 
tion must  allege  that  further  assets  have  come  to  the 
hands  of  the  executor  or  administrator,  and  he  must  sub- 
stantiate this  allegation  by  proof.  Without  such  proof 
the  commission  will  not  be  opened.  Either  the  creditor 
or  executor  may  appeal  from  the  decree  of  the  probate 
court  allowing  or  refusing  the  prayer  of  the  petition.^ 

The  claim  of  a  creditor  in  whose  favor  the  commis- 
sion is  reopened  is  not  barred,  in  consequence  of  the 
lapse  of  time  subsequent  to  the  closing  of  the  first  com- 
mission, by  any  of  the  statutes  of  limitation.  He  may 
proceed  by  petition  whenever  there  are  new  assets  to  be 
distributed.  The  executor  or  administrator  is  liable  to 
account  for  all  funds  in  his  hands,  though  he  may  have 
received  them  more  than  twenty  years  after  the  decree 
of  distril)ution  was  passed.-^ 

If  after  the  report  of  the  commissioners  the  assets 
prove  sufficient  to  pay  all  debts  allowed,  the  executor 
or  administrator  pays  them  in  full ;  and  if  any  other 

-      1  Gen.  Sts.  c.  99,  §  21. 

2  The  decree  if  not  appealed  from  is  conclu.sive,  and  cannot  1)e  inquired 
into  in  a  subsequent  appeal  from  the  subsequent  decision  of  the  commia- 
sioners  allowin;^  or  disallowing  the  claim.    Ostrom  v,  Curtis,  1  Gush.  461. 

3  Ibid. ;  White  v.  Swain,  3  Pick.  365. 


INSOLVENT   ESTATES    OP   DECEASED   PERSONS.  161 

debt  is  afterwards  recovered  against  him,  he  is  liable 
therefor  only  to  the  extent  of  the  assets  then  remain- 
ing. If  there  are  two  or  more  such  creditors,  the  assets, 
if  insufficient  to  pay  them  in  full,  is  divided  between 
them  in  proportion  to  their  debts.  The  executor  or  ad- 
ministrator, in  an  action  brought  against  him  on  such 
demand,  may  prove  the  amount  of  assets  in  his  hands, 
and  thereupon  judgment  will  be  rendered  in  the  usual 
form  ;  but  execution  will  not  issue  for  more  than  the 
amount  of  such  assets  ;  and  if  there  are  two  or  more 
such  judgments,  the  court  will  apportion  the  amount 
between  them.^ 

If  it  is  not  ascertained,  at  the  end  of  eighteen  months 
after  the  granting  of  letters  testamentary  or  of  adminis- 
tration, whether  an  estate  represented  insolvent  is  or  is 
not  so  in  fact,  any  creditor  whose  claim  has  not  been 
presented  before  the  commissioners  may  commence  an 
action  therefor  against  the  executor  or  administrator, 
which  may  be  continued  without  costs  for  the  defend- 
ant until  it  appears  whether  the  estate  is  insolvent. 
If  it  appears  solvent,  the  plaintiff  may  prosecute  the 
action  as  if  no  such  representation  had  been  made.^  If 
it  proves  insolvent,  he  will  have  no  remedy  unless  new 
assets  come  to  the  hands  of  the  executor  or  adminis- 
trator, in  which  case  he  may  petition  that  the  commis- 
sion be  opened ;  and  if  the  commission  is  opened,  he  can 
prove  his  claim.  All  actions  against  an  executor  or  ad- 
ministrator must  be  commenced  within  two  years  from 
the  time  he  gives  bond  for  the  discharge  of  his  trust  ex- 
cept in  the  cases  specified  by  statute.^ 

1  Gen.  Sts.  c.  99,  §§  22-24. 

2  Ibid.  §  25.  3  Ibid.  c.  97,  §§  6,  7;  ante,  p.  137. 

11 


162  PROCEEDINGS   IN    THE   PROBATE    COURTS. 


PROVISIONS  AS  TO  ESTATES  OF  DECEASED  FOREIGNERS. 

AVhcn  an  inhabitant  of  anotlier  State  or  country  dies 
insolvent  and  leaves  estate  to  be  administered  here,  the 
estate  found  here  is  not  to  be  transmitted  to  the  foreign 
administrator  until  creditors  who  are  citizens  of  this 
State  have  received  their  equitable  dividends.  If  all 
the  assets  were  transmitted  to  the  foreign  administra- 
tor, creditors  in  this  State  would  be  subjected  to  the 
expense  of  proving  and  collecting  their  demands  abroad ; 
and  the  pursuit  of  their  claims  in  countries  where  the 
local  law  makes  no  provision  for  an  equal  distribution 
of  the  assets  of  a  deceased  insolvent,  might  be  wholly 
fruitless.  Under  the  provisions  of  our  statute,  citizens 
of  this  State  cannot  be  put  to  the  inconvenience  of  prov- 
ing their  claims  abroad  wlien  there  are  assets  here ;  nor, 
on  the  other  hand,  can  the  whole  estate  found  here  be 
expended  in  paying  the  claims  of  our  citizens  to  the 
prejudice  of  foreign  creditors  ;  but  the  estate  found 
here,  as  far  as  practicable,  is  to  be  so  disposed  of,  that 
all  creditors  of  the  deceased,  here  and  elsewhere,  may 
receive  each  an  equal  share  in  proportion  to  their  re- 
spective debts. ^ 

To  this  end,  the  statute  provides  that  the  assets  shall 
not  be  sent  to  the  foreign  administrator  until  all  creditors 
who  are  citizens  of  this  State  have  received  the  just  pro- 
portion that  would  be  due  to  them  if  the  whole  estate 
of  the  deceased  wherever  found,  that  is  applicable  to  the 
payment  of  common  creditors,  were  divided  among  all 
the  creditors  in  proportion  to  their  respective  debts, 
w'ithout  preferring  any  one  species  of  debt  to  another,^ 

1  Gen.  Sts.  c.  101,  §  40;  Dawes  v.  Head,  3  Pick.  128;  Hooker  v.  Olra- 
stead,  6  Pick.  481  ;  Davis  v.  Esty,  8  Pick.  475. 

2  The  local  laws  of  some  countries  prefer  debts  on  judgments,  bonds, 


INSOLVENT  ESTATES  OF  DECEASED  PERSONS.     163 

in  Avhich  case  no  creditor  who  is  not  a  citizen  of  this 
State  shall  be  paid  out  of  the  assets  found  here  until 
all  those  who  are  citizens  have  received  their  just  pro- 
portion.^ 

The  statute  further  provides  that  if  there  is  any  resi- 
due remaining  after  such  payment  to  the  citizens  of  this 
State,  it  may  be  paid  to  any  other  creditors  who  have 
duly  proved  their  debts  here,  in  proportion  to  the  amount 
due  to  each  of  them,  but  no  one  shall  receive  more  than 
would  be  due  to  him  if  the  whole  estate  were  divided 
ratably  among  all  the  creditors.  The  balance  may  be 
transmitted  to  the  foreign  executor  or  administrator ; 
or,  if  there  is  none,  it  shall,  after  the  expiration  of  four 
years  from  the  appointment  of  the  administrator,  be  dis- 
tributed ratably  among  all  creditors,  both  citizens  and 
others,  who  have  proved  their  debts  in  this  State. ^ 

&c.,  to  simple  contract  debts.  Such  preferences  are  not  to  be  regarded 
in  the  distribution  here. 

1  Gen.  Sts.  c.  101,  §  41.  2  Ibid.  §  42. 


CHAPTER  XIV. 

SALES  OF  LAND  BY  EXECUTORS,  ADMINISTRATORS,  AND 
GTJARDLANS. 

SALES   BY   EXECUTORS   AND   ADMINISTRATORS. 

When  the  personal  estate  of  a  deceased  person  is 
insufficient  to  pay  his  debts  with  the  charges  of  admin- 
istration, his  executor  or  administrator  may  sell  his  real 
estate  for  that  purpose,  having  been  first  licensed  there- 
for b}^  the  supreme  judicial  court  or  superior  court  in 
any  county,  or  the  probate  court  in  which  letters  testa- 
mentary or  of  administration  issued.^     And  when  a  tes- 

1  Gen.  Sts.  c.  102,  §§  1,  2. 

An  executor  who  is  residuary  legatee  and  gives  bond  for  the  payment 
of  the  debts  and  legacies,  acquires  an  absolute  title  in  the  estate  devised, 
and  may  convey  it  without  license.  Clark  v.  Tufts,  5  Pick.  337.  And 
an  executor  duly  authorized  thereto  by  tlie  terms  of  the  will,  may  convey 
the  lands  of  his  testator  without  license.  But  when  the  executor,  so 
empowered  by  the  will,  dies  before  making  the  conveyance,  or  renounces 
the  office  of  executor,  the  power  to  sell  does  not  devolve  upon  the  admin- 
istrator with  the  will  annexed  who  succeeds  him.  Such  administrator 
can  sell  only  by  license  of  court.  Tainter  v.  Clark,  13  Met.  220 ;  Green- 
ough  V.  Wells,  10  Cush.  571:  Lamed  v.  Bridge,  17  Pick.  389;  Conkiin  v. 
Egerton's  administrator,  21  Wendell,  430.  See  Warden  v.  Richards,  11 
Gray,  277.  If  the  power  to  sell  is  given  to  two  executors,  one  of  whom 
resigns,  the  other  may  exercise  it  singly.  Gould  v.  Mather,  101  Mass. 
283.  "" 

If  the  executor  is  authorized  to  sell  lands  for  trust  purposes,  he  does 
not,  by  renouncing  the  office  of  executor,  lose  the  power  to  convey  as 
trustee  under  the  will.    His  sales  and  conveyances,  made  after  the  renun- 


SALES  OF  LAND  BY  EXECUTORS,  ETC.       165 

tator  has  given  a  legacy,  which  with  his  debts  and  the 
charges  of  administration  his  personal  estate  is  insuf- 
ficient to  pay,  the  executor  or  administrator  with  the 
will  annexed  may  be  licensed,  in  like  manner,  to  sell 
real  estate  for  that  purpose.^ 

As  the  legal  title  to  real  estate  vests  in  the  heirs  or 
devisees  immediatel}^  upon  the  death  of  the  owner,  the 
administrator,  as  such,  has  nothing  to  do  with  the  lands 
of  his  intestate,  except  to  see  that  they  are  appraised, 
until  he  is  licensed  to  sell  them  for  the  payment  of  debts 
and  charges.  Nor  has  the  executor,  unless  under  an 
authority  given  him  by  the  will  of  his  testator.  When, 
therefore,  lands  are  sold  by  executors  and  administra- 
tors, it  is  important  for  them  to  observe  strictly  the 
directions  of  the  statute,  from  which  alone  they  derive 
the  power  to  make  the  conveyance. 

Licenses  to  sell  real  estate  are  provided  for  by  the 
statute  only  when  the  personal  property  is  insufficient 
for  the  payment  of  debts,  legacies,  and  charges  of  admin- 
istration. The  convenience  of  parties  interested  in  the 
lands  would  be  promoted,  in  some  cases,  by  a  sale  of 
them  by  the  administrator,  although  the  proceeds  are 
not  needed  for  the  payment  of  debts  or  legacies,  but 
licenses  cannot  be  granted  under  such  circumstances 
(except  to  public  administrators,  whose  sales  under 
license  are  considered  in  a  subsequent  part  of  this  chap- 

ciation  of  his  executorship  and  after  his  acceptance  of  the  trust,  are  valid 
as  against  the  devisees  and  tiieir  lieirs.     Clark  o.  Tainter,  7  Cush.  567. 

Where,  under  the  provisions  of  a  will,  the  sale  of  devised  real  estate 
by  a  trustee  or  executor  is  dependent  upon  the  consent  of  a  person  who 
shall  have  deceased,  the  judge  of  the  probate  court  having  jurisdiction 
of  the  proceedings  in  the  settlement  of  the  estate,  may,  in  his  discretion, 
authorize  the  sale  of  such  real  estate  the  same  as  though  no  such  consent 
was  required ;  provided  all  parties  interested  in  the  sale  assent  thereto. 
Stat.  1871,  c.  329. 

2  Gen.  Sts.  c.  102,  §  19. 


166  PROCEEDINGS   IX   THE   PRORATE    COURTS. 

ter)-     The  sale  must  be  necessary  for  the  payment  of 
claims  wliich  can  be  enforced  at  law.^ 

The  Real  Estate  liable  to  he  sold  includes  all  lands  of 
the  deceased,  and  all  riglits  of  entry  and  of  action,  and 
all  other  rights  and  interests  in  lands  which  by  law 
would  descend  to  his  heirs,  or  which  would  have  been 
liable  to  attachment  or  execution  by  a  creditor  of  the 
deceased  in  his  lifetime.^     No  claim  to  such  lands   by 

1  Lamson  v.  Schutt,  4  Allen,  359. 

2  All  lands  of  tlie  debtor  in  possession,  remainder,  or  reversion,  all  his 
rights  of  entry  into  lands  and  of  redeeming  mortgaged  lands,  and  all 
lands  and  rights  above  described  fraudulently  conveyed  by  him  witli  in- 
tent to  defeat,  delay,  or  defraud  his  creditors,  or  purcliased,  or  directly 
or  indirectly  paid  for  by  him,  the  record  title  to  which  is  retained  in  the 
vendor,  or  is  conveyed  to  a  third  person  with  intent  to  defeat,  delay,  or 
defraud  the  creditors  of  the  debtor  or  on  a  trust  for  him,  express  or  im- 
plied, may  (except  homestead  rights)  be  taken  on  execution  for  his  debts. 
Gen.  Sts.  c.  103,  §  1. 

An  executor  or  administrator  licensed  to  sell  lands  fraudulently  con- 
veyed by  the  deceased,  or  fraudulently  held  by  another  person  for  him, 
or  to  whicli  he  had  a  right  of  entry  or  of  action  or  a  right  to  a  convey- 
ance, may  first  obtain  possession  thereof  by  entrj-  or  by  action.  Yeomans 
V.  Brown,  8  Met.  51.  He  may  make  a  formal  entry  on  the  premises  and 
bring  an  action  on  his  own  seisin  acquired  by  such  entry,  demanding  the 
land  as  executor  or  administrator.     Gen.  Sts.  c.  102,  §§  12,  13. 

Real  estate,  conveyed  by  an  intestate  in  his  lifetime,  without  adequate 
consideration,  and  by  way  of  gift,  either  in  whole  or  in  part,  may  be  sold 
by  his  administrator  to  pay  his  debts,  as  estate  conveyed  by  him  with 
intent  to  defraud  his  creditors,  if,  at  the  time  of  the  convej^ance,  he 
thereby  rendered  himself  unable  to  pay  his  then  existing  creditors.  Nor- 
ton 0.  Norton,  5  Gush.  524. 

The  proceeds  of  a  sale  by  an  administrator  of  real  estate  conveyed  by 
his  intestate  with  a  view  to  defraud  creditors,  though  such  conveyance 
was  void  at  the  time  as  against  then  existing  creditors  only,  are  applica- 
ble to  the  payment  of  all  tlie  creditors  alike.     Ibid. 

If  an  administrator  receives  payment  of  a  note  given  for  the  purchase- 
money  of  an  estate,  conveyed  by  his  intestate  to  defraud  creditors,  he 
does  not  thereby  ratify  tlie  conveyance;  unless  the  payment  is  received 
with  full  knowledge  of  the  facts,  and  tiie  administrator  is  a  party  in  in- 
terest, in  which  case  it  might  be  otherwise.     Ibid. 

The  interest  of  a  deceased  partner  in  partnership  real  estate  which  is 


SALES  OF  LAND  BY  EXECUTORS,  ETC.       167 

entry  or  action  can  be  made  more  than  five  years  after 
tlie  death  of  the  grantor.  When  land  is  demised  for 
the  term  of  one  hundred  years  or  more,  the  term,  so 
long  as  fifty  years  thereof  remain  unexpired,  is  regarded 
by  the  statute  as  an  estate  in  fee-simple  as  to  every  thing 
concerning  the  sale  thereof  by  executors,  administrators, 
and  guardians  by  license  from  any  court.^ 

The  executor  or  administrator  may  sell  lands  held  in 
mortgage,  or  taken  in  execution  for  a  debt  due  the 
deceased,  at  any  time  before  the  right  to  redeem  them 
is  foreclosed,  in  the  same  manner  as  personal  estate. 
The  legal  title  to  such  lands  is  in  him.  He  holds  it  in 
trust  for  the  persons  who  would  be  entitled  to  the  money 
if  the  mortgage  or  other  debt  had  been  paid.  But  after 
the  right  of  redemption  is  foreclosed,  the  executor  should 
obtain  license  before  making  sale  of  the  land,  in  the  same 
manner  as  if  the  deceased  had  died  seised  of  it.  The 
license  is  not  necessary  to  enable  the  executor  to  convey 
the  legal  title,  which  is  already  vested  in  him,  but  is  in- 
tended solely  to  bind  heirs  and  legatees,  and  make  the 
title  good  against  them  as  the  owners  of  the  beneficial 
interest.^ 

Tlie  Petition  for  License  to  sell  Real  Estate  must  be 
presented  by  the  executor  or  administrator  to  the  probate 
court  of  the  countj^  in  which  letters  testamentary  or  of 
administration  issued.     If  tliere  are  two  or  more  execu- 

not  required  for  the  settlement  of  tlie  affiiirs  of  the  firm,  is  to  be  treated 
as  realty,  and  may  be  sold  for  the  payment  of  legacies.  Wilcox  i'.  Wil- 
cox, 13  Allen,  252. 

1  Gen.  Sts.  c.  90,  §  20. 

2  Ibid.  c.  96,  §  9,  et  seq. 

An  executor,  who,  after  foreclosing  a  mortgage  held  by  his  testator, 
sells  and  conveys  the  land,  without  license  of  court,  is  not  liable  to  an 
action  on  the  covenant  of  good  right  to  convey  in  his  deed,  if  the  legatees 
have  received  the  purchase-money ;  nor,  it  seems,  if  they  liavo  not.  Bald- 
win V.  Timmins,  3  Gray,  802. 


168  PROCEEDINGS    IN    THE   PROBATE   COURTS. 

tors  or  administrators,  all  must  join  in  the  petition.^  It 
may  be  presented  as  soon  as  the  necessity  of  the  pro- 
posed sale  becomes  apparent.  It  must  be  in  writing, 
and  tlie  statute  requires  to  be  set  forth  therein  the 
amount  of  the  debts  due  from  the  deceased  as  nearly  as 
they  can  be  ascertained,  the  amount  of  charges  of  ad- 
ministration, and  the  value  of  the  personal  estate, 
exclusive  of  the  amount  allowed  the  widow  or  minor 
children,  in  the  executor's  hands.  It  is  sufficient  to 
state  in  the  petition  the  gross  amount  of  all  the  debts 
due,  but  the  executor  or  administrator  must  file  with  his 
petition  a  list  of  the  debts,  so  far  as  they  can  be  ascer- 
tained, showing  the  name  of  each  creditor  and  the  sum 
due  to  each.  Such  list  of  claims  should  be  signed  by 
the  petitioner  and  sworn  to.^ 

If  it  is  necessary  to  sell  only  part  of  the  real  estate, 
the  petitioner  may  also  set  forth  the  value,  description, 
and  condition  of  the  estate,  or  of  such  part  as  he  pro- 
poses to  sell,  and  the  court  may  direct  what  specific  part 
shall  be  sold.  If  the  estate  is  so  situated  that  by  a  par- 
tial sale  the  residue  of  the  estate,  or  of  some  specific 
piece  or  part  thereof,  would  be  greatly  injured,  the  facts 
should  be  stated  in  the  petition.^ 

It  is  sometimes  the  case  that  the  testator  has  made  by 
will  some  disposition  of  his  estate  for  the  payment  of  his 
debts,  or  has  given  some  directions  which  may  vary  the 
order  in  which  the  different  parts  of  his  estate  shall  be 
appropriated.  Thus,  though  the  personal  property  is 
first  liable  for  payment  of  debts,  the  testator  may 
expressly  exempt  it,  or  some  portion  of  it,  by  making  it 

1  Hannum  v.  Day,  105  Mass.  33. 

2  It  is  not  necessary  that  the  amount  of  the  debts  shoiild  have  been 
previously  ascertained  by  jmlgment  against  the  executor,  or  by  conimia- 
sion  of  insolvency.     Tenny  v.  Poor,  14  Gray,  500. 

3  Gen.  Sts.  c.  102,  §§  3,  4;  Yeomans  v.  Brown,  8  Met.  58. 


SALES  OF  LAND  BY  EXECUTORS,  ETC.       169 

the  subject  of  a  specific  legacy,  and  may  direct  his  debts 
to  be  paid  out  of  other  funds,  or  may  leave  other  funds 
not  exempted.  Such  specific  legacies  are  not  to  be 
taken  for  the  payment  of  debts,  if  there  are  other  funds, 
so  first  hable.  The  law  will  respect  the  testator's  direc- 
tions so  far  as  is  consistent  with  the  rights  of  creditors. 
If  the  will  contains  any  provision  which  may  require  or 
induce  the  court  to  marshal  the  assets  in  any  manner 
different  from  that  which  the  law  would  otherwise  pre- 
scribe, such  devise  or  parts  of  the  will  must  be  set  forth 
in  the  petition,  and  a  copy  of  the  will  must  be  exhibited 
to  the  court.^  Undevised  land  is  first  chargeable  with 
the  testator's  debts  in  exoneration,  as  far  as  it  will  go, 
of  the  real  estate  devised,  unless  a  different  arrange- 
ment is  made  by  the  will.^ 

Notice  to  PartieH  interested.  The  license  will  not  be 
granted  until  notice  of  the  petition,  and  of  the  time  and 
place  appointed  for  hearing  the  same,  has  been  served 
either  personally  on  all  persons  interested  in  the  estate,^ 
at  least  fourteen  daj^s  before  the  time  appointed  for  the 
hearing,  or  by  publication  three  weeks  successively  in 
some  newspaj)er,  as  the  court  may  order.     The  petition 

1  Gen.  Sts.  c.  102,  §  7.  2  ibid.  c.  92,  §  34. 

■^  Wlien  the  executor  petitions  for  license  to  sell  land  of  which  his  tes- 
tator was  disseised  at  the  time  of  liis  death,  for  tlie  purjiose  of  paying 
his  debts,  tiie  disseisor  in  possession  is  not  interested  in  the  estate,  witliin 
the  meaning  of  the  statute,  and  is  not  entitled  to  notice  of  the  petition  in 
order  to  render  the  license  valid  as  against  him.  Yeomans  v.  Brown,  8 
Met.  51. 

The  practice  in  the  probate  court  is  to  order  notice  in  the  manner  pre- 
scribed by  statute,  and  it  is  not  made  the  duty  of  the  executor  to  obtain 
the  appointment  of  guardians  to  all  minors  interested  in  the  estate  before 
he  can  obtain  a  license.     Holmes  v.  Beal,  9  Cush.  226. 

The  wife  of  a  devisee  of  real  estate  is  not  entitled  to  notice  of  a  peti- 
tion of  the  devisor's  administrator  for  license  to  sell  it  for  tiie  payment 
of  debts,  legacies,  and  charges  of  administration.  Harrington  v.  Harring- 
ton, 13  Gray,  513. 


170      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

may  be  filed  in  the  probate  office  on  any  day,  and  the 
order  issued  by  the  register  of  probate.  But  if  all  per- 
sons interested  signify  their  assent  in  writing  to  the  sale, 
notice  ma}'  be  dispensed  with.^  The  assent  should  be 
indorsed  on  the  petition. 

The  Necessity  for  the  proposed  Sale.  The  party  ap- 
plying for  license  to  sell  the  real  estate  of  his  testator  or 
intestate,  must  satisfy  the  court  that  a  necessity  exists 
for  the  sale  he  proposes  to  make.  To  do  this,  he  must 
exhibit  the  condition  of  the  estate  at  the  time.  If  the 
inventory  made  of  the  estate  was  full  and  complete,  the 
necessity  of  the  sale  may  be  apparent  from  a  compari- 
son of  the  list  of  debts  with  the  inventory.  But  the 
inventory  shows,  in  but  very  few  cases,  the  full  amount 
of  the  personal  assets,  and  the  better  course,  in  all  cases, 
is  for  the  petitioner  to  render  an  account  of  his  adminis- 
tration on  or  before  the  day  when  his  application  for  a 
license  is  to  be  heard  by  the  court. 

The  averment  and  admission  of  the  executor  that  a 
certain  debt  is  due  from  the  estate,  is  not  evidence  to 
establish  the  fact.  But  any  creditor  of  the  deceased  is 
a  competent  witness  to  prove  his  debt  in  support  of  the 
executor's  petition.^ 

The  adjudication  of  the  probate  court  as  to  the  exist- 
ence of  debts  and  charges  is  final,  so  far  as  it  affects  any 
title  acquired  by  virtue  of  the  license,  but  does  not  af- 
fect the  right  of  the  executor  or  administrator  to  contest 
the  validit}^  of  such  debts  and  charges.^ 

Any  person  interested  may  appear  and  object  to  the 
granting  of  the  license,  and  if  it  appears  to  the  court 
that  either  the  petition  or  the  objection  thereto  is  un- 

1  Gen.  Sts.  c.  102,  §  8. 

2  Chamberlain  v.  Chamberlain,  4  Allen,  184. 

3  Stat.  1874,  c.  340: 


SALES  OF  LAND  BY  EXECUTORS,  ETC.       171 

reasonable,  they  may  award  costs  to  the  prevailing- 
party.^ 

It  may  be  that  the  heirs  or  devisees  prefer  to  keep  the 
estate  entire  and  in  their  own  hands,  or  the  value  of  the 
property  may  be  temporarily  depressed,  so  that  it  can- 
not be  sold  immediately  without  a  considerable  sacrifice. 
If  for  these  reasons,  or  for  any  reasons,  the  persons  inter- 
ested wish  to  stay  proceedings  under  the  petition  and 
prevent  the  sale,  they  can  effect  that  result  by  paying 
to  the  executor  or  administrator  the  amount  of  money 
needed  for  the  payment  of  claims  against  the  estate,  and 
the  money  so  received  will  be  assets  of  the  estate  to  be 
administered  and  accounted  for ;  and  the  executor  or 
administrator  will  be  liable  on  his  bond  for  any  failure 
to  appropriate  such  assets  to  the  payment  of  debts  and 
legacies  ;  ^  or  any  of  the  persons  interested  may  give 
bond  to  the  executor  or  administrator,  in  a  sum  and 
with  sureties  approved  by  the  court,  with  condition  to 
pay  all  debts  mentioned  in  the  petition  that  shall  eventu- 
ally be  found  due  from  the  estate,  and  charges  of  ad- 
ministration, so  far  as  the  personal  estate  may  prove 
insufficient  therefor.  If  the  money  is  so  paid,  or  if  such 
a  bond  is  given,  license  to  sell  will  not  be  granted.^  The 
heirs  ma}' authorize  the  administrator  to  collect  the  rents 
and  appropriate  them  to  the  payment  of  the  debts,  and 
thereby  avoid  the  necessity  for  the  sale.* 

As  to  the  License.  If  the  facts  set  forth  in  the  peti- 
tion are  proved,  and  no  sufficient  cause  is  shown  to  the 
contrary,  the  license  to  sell   will  be  granted,  and  the 

1  Gen.  Sts.  c.  102,  §  45.  ^  pay  v.  Taylor,  2  Gray,  154. 

8  Gen.  Sts.  c.  102,  §  <J.     See  Appendix,  form  No.  65. 

*  But  tlie  occupation  of  tlie  real  estate  by  one  of  two  administrators, 
who  is  also  one  of  the  heirs,  without  paying  or  charging  liiinsclf  with 
any  rent,  is  not  of  itself  a  bar  to  granting  the  license  to  sell.  Palmer  v. 
Palmer,  13  Gray,  320. 


172  PROCEEDINGS    IN    THE    PROBATE    COURTS. 

executor  or  administrator  will  thereupon  be  authorized 
to  execute  effectual  conveyances  of  the  estate.^  The 
court  may  license  in  terms  the  sale  of  the  whole  of  the 
estate  of  the  deceased,  when  the  executor  represents  in 
his  petition,  and  it  appears  to  the  court,  that  a  sale  of 
the  whole  is  necessary ,2  or  may  license  the  sale  of  such 
part  thereof  as  is  deemed  necessary  and  most  for  the 
interest  of  all  concerned,  or  may  direct  what  specific  part 
shall  be  sold.^  The  license  is  sufficient  if  it  is  in  general 
terms,  authorizing  the  sale  of  so  much  as  will  raise  a  cer- 
tain sum  ;  *  but  the  license  must  concur  Avith  and  be 
based  upon  the  petition. ^  If  it  is  necessary,  under  the 
provisions  of  the  will  of  the  deceased,  the  court  will 
marshal  the  assets,  and  the  executor  will  appropriate 
the  lands  in  the  order  specified  by  the  court.*^ 

License  to  sell  is  not  usually  granted  after  the  expira- 
tion of  the  period  (two  years)  limited  for  the  commence- 
ment of  actions  against  executors  and  administrators  who 
have  given  due  notice  of  their  appointment.  The  object 
and  general  effect  of  the  statute  making  this  limitation, 

1  Gen.  Sts.  c.  102,  §  10. 

2  Ibid.  §  4 ;  Sewall  v.  Raymond,  7  Met.  754.  Under  a  license  to  sell 
the  whole,  the  reversion  of  land  assigned  to  the  widow  as  dower  may  be 
sold.     Bancroft  v.  Andrews,  6  Cush.  493. 

3  Gen.  Sts.  c.  102,  §§  3,  4,  7.  *  Norton  v.  Norton,  5  Cush.  524. 

*  On  the  petition  for  license  to  sell  a  specific  portion  of  the  estate  for 
the  payment  of  debts  and  charges,  and  after  publication  of  notice  to 
show  cause  why  license  should  not  be  granted  to  sell  "  the  ^vhole  of  the 
real  estate  of  said  deceased,"  a  license  to  sell  "  tlie  whole  of  tlie  real 
estate  of  said  deceased  "  is  irregular  and  void ;  and  will  not  support  an 
action  by  the  administrator,  on  tlie  Gen.  Sts.  c.  102,  §  12,  to  recover  the 
specific  portion,  as  liaving  been  fraudulently  conveyed  by  the  deceased. 
Verry  ?;.  McCleilan,  6  Gray,  535. 

The  executor  may  be  licensed  to  sell  land  suflBcient  to  pay  a  larger 
sum  than  the  amount  of  debts  and  charges  named  in  the  petition. 
Tenny  v.  Poor,  14  Gray,  500. 

6  Gen.  Sts.  c.  102,  §  7 ;  Hays  v.  Jackson,  6  Mass.  149. 


SALES  OP  LAND  BY  EXECUTORS,  ETC.       173 

is  to  discharge  the  lien  of  creditors  on  the  land  at  the 
expiration  of  the  two  years,  thereby  promoting  the 
speedy  settlement  of  estates  and  establishing  the  titles 
of  the  heirs.  If  no  claims  exist  but  those  against  which 
the  statute  of  limitations  furnishes  complete  protection, 
the  proceeds  of  the  real  estate  are  not  needed  for  the 
payment  of  debts,  and  a  license  to  sell  cannot  be  granted. 
The  question  to  be  determined  upon  every  application 
for  a  license  is,  whether  the  proposed  sale  is  necessary 
for  the  payment  of  claims  against  the  estate.^  A  license 
ma}'  be  granted  after  the  exjiiration  of  the  two  years, 
provided  there  are  claims  against  the  estate  upon  which 
the  statute  of  limitations  does  not  operate.^  But  the 
court  will  not  grant  a  license  after  the  two  years  have 
elapsed,  unless  extraordinary  circumstances  render  it 
proper,  especially  when  the  effect  will  be  tO  disturb 
titles  acquired  under  the  presumption  that  all  the  debts 
had  been  paid.^ 

In  what  Cases  a  Bond  must  he  given.  The  statute 
requires  an  executor  or  administrator  who  is  licensed 
to  sell  more  than  is  necessary  for  the  payment  of  debts 

1  Lamson  v.  Schutt,  4  Allen,  359 ;  Hudson  v.  Hurlburt,  15  Pick.  423 ; 
Heath  v.  Wells,  5  Pick.  140 ;  Tarbell  v.  Parker,  106  Mass.  347. 

2  Palmer  v.  Palmer,  13  Gray,  326;  Richmond,  Petitioner,  2  Pick.  567. 

3  Where  an  executor  has  paid  debts  of  his  testator,  beyond  the  amount 
of  the  personal  assets,  v/ithin  the  time  limited  by  statute,  he  cannot  after- 
wards be  licensed  to  sell  lands  to  reimburse  himself,  unless  the  estate 
remains  as  it  was  at  the  death  of  the  testator,  and  his  application  is  made 
in  a  reasonable  time  after  his  payment  of  the  debts.  Allen,  Petitioner, 
15  Mass.  58. 

But  where  the  land  bad  neither  been  sold  nor  divided  atnong  the  heirs, 
an  administrator  who  had  demands  against  his  intestate  and  had  made 
advances  to  the  estate  out  of  his  own  funds,  but  had  rendered  no  account 
until  after  the  time  limiting  the  bringing  of  actions  had  expired,  the 
delay  having  been  occasioned  in  part  by  an  attempt  to  collect  a  debt 
abroad,  was  licensed  to  sell.  Richmond,  Petitioner,  2  Pick.  567;  and  see 
Palmer  v.  Palmer,  13  Gray,  326. 


174      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

to  give  bond  with  sufficient  surety  or  sureties  to  the 
judge  of  the  probate  court,  conditioned  to  account  for 
and  dispose  of  according  to  hiw  all  proceeds  of  the  sale 
remaining  after  payment  of  the  debts  and  charges. ^  This 
requirement  of  the  statute  does  not  apply  to  a  case  where 
the  sale  may  unexpectedly  exceed  the  amount  necessary 
to' be  raised,  but  where  it  appears  to  the  court  at  the 
time  that  it  will  be  more  thaa  is  necessary.^  When 
license  is  granted  to  sell  only  so  much  as  is  necessary 
for  the  payment  of  debts  and  charges,  no  separate  bond 
is  necessary.  ^ 

As  to  the  Time  of  Sale.  No  license  to  sell  land  con- 
tinues in  force  more  than  one  year  after  it  is  granted, 
and  sales  must  be  made  within  the  year,  except  when  a 
sale  is  made  of  land  which  was  not  in  possession  of  the 
deceased  at  the  time  of  his  death  and  is  recovered  by 
the  executor  or  administrator.  Land  so  recovered  may 
be  sold  at  any  time  within  one  year  after  possession  is 
obtained.^  But  it  is  not  essential  that  the  deed  be  de- 
livered within  the  3'ear,  provided  all  the  other  proceed- 
ings are  regular. 

Notice  of  the  Time  and  Place  of  Sale  must  be  given 
by  notifications  posted  thirt}^  days  at  least  before  the 
sale,  in  some  public  place  in  the  city  or  town  where  the 
deceased  last  dwelt,  and  in  two  adjoining  cities  or  towns, 
if  there  are  so  many  in  the  county,  and  also  in  the  city 
or  town  where  the  lands  lie  ;  or  by  publishing  the  same 
three  weeks  successively  in  a  newspaper,  as  the  court 
may  order.^  Such  notice  is  essential  to  the  validity  of 
the  sale.     The  form  of  the  notifications  is  not  material, 

1  Gen.  Sts.  c.  102,  §  6.  2  Sewell  v.  Raymond,  7  Met.  459. 

3  Fay  V.  Valentine,  8  Pick.  526 ;  Tenny  o.  Poor,  14  Gray,  600. 

*  Gen.  Sts.  c.  102,  §§  12,  13,  4.3. 

*  Ibid.  §  15.     See  Appendix,  form  No.  66. 


SALES  OF  LAND  BY  EXECUTORS,  ETC.       175 

but  the  time  and  place  fixed  for  the  sale  should  be  dis- 
tinctly stated.  An  error  in  this  particular  may  invali- 
date the  sale.^  The  conditions  of  the  sale  are  not 
necessarily  to  be  stated, ^  but  the  notifications  should 
plainly  identify  the  property  ^  and  convey  to  the  public 
all  such  information  in  regard  to  it  as,  in  the  judgment  of 
the  executor,  is  best  calculated  to  promote  the  interests 
of  the  estate.  It  is  important  to  executors,  for  their 
own  protection,  to  preserve  evidence  of  the  fact  that  the 
notice  was  given  as  required  by  the  terms  of  the  license, 
and  the  statute  provides  a  mode  of  perpetuating  such 
evidence.  An  affidavit  of  the  executor,  or  of  the  person 
employed  b}'  him  to  give  such  notice,  filed  and  recorded 
in  the  probate  office  within  one  year  after  the  sale,  or  at 
any  time  afterwards  by  permission  of  the  court,  is  made 
admissible  evidence  of  the  time,  place,  and  manner  of 
giving  the  notice.*  When  it  appears  that  such  affidavit 
has  not  been  made,  any  person,  on  petition  to  the  pro- 
bate court,  may  be  permitted  to  make  it.^  The  fact  may 
be  proved  by  other  evidence,  but  it  may  be  difficult  or 
impossible  for  the  executor,  after  the  lapse  of  years,  in 
case  a  question  is  raised  upon  the  covenants  in  his  deed, 
to  obtain  such  other  evidence.  In  the  absence  of  all 
evidence  that  such  notice  was  given,  there  is  no  pre- 
sumption within  thirty  years  that  it  was  given.^  The 
affidavit,  therefore,  should  be  filed  in  all  cases. 

Adjournment  of  the  Sale.     If,  at  the  time  appointed 

1  Where  the  sale  was  advertised  to  be  on  Friday,  tlie  'ITth,  wliereas 
Friday  was  in  fact  the  10th,  and  the  sale  was  made  on  the  lOtli,  it  was 
held  void,  although  in  the  last  publication,  whicli  was  on  the  day  of  sale, 
the  error  was  corrected.     Willman  v.  Lawrence,  15  Mass.  320. 

2  Paine  v.  Fox,  16  Mass.  129. 

3  N.  E.  Hospital  0.  Sohier,  115  Mass.  50. 

4  Gen.  Sts.  c.  102,  §§  15,  10  ;  Stat.  1870,  c.  76. 

6  Stat.  1876,  c.  71.  "  Thomas  v.  Le  Baron,  8  Met.  355. 


176      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

for  the  sale,  the  executor  or  administrator  deems  it  for 
the  interest  of  all  persons  concerned,  that  the  sale  be 
postponed,  he  may  adjourn  it  for  any  time  not  exceeding 
fourteen  days.  Notice  of  such  adjournment  must  be 
given  by  a  public  declaration  at  the  time  and  place 
first  appointed  for  making  the  sale ;  and  if  the  adjourn- 
ment is  for  more  than  one  day,  further  notice  thereof 
must  be  given  by  posting  or  publishing  as  time  and 
circumstances  may  admit. ^ 

The  Sale,  must  be  by  j3ublic  auction,  and  must  be 
conducted  with  a  view  to  insure  an  unrestrained  and 
honest  competition  among  bidders,  and  thus  to  procure 
the  highest  price  for  the  land.'-^  The  executor  or  ad- 
ministrator making  the  sale  cannot  properly  become  the 
purchaser,  directly  or  indirectly,  though  if  it  is  pur- 
chased by  him,  under  color  of  a  sale  to  some  other 
person,  the  sale  is  not  absolutely  void  ;  strangers  to  the 
property  cannot  tall  it  in  question,  but  it  is  voidable  at 
the  pleasure  of  the  heirs  of  the  deceased.^  The  heirs 
are  not  obliged  to  act  jointly  in  avoiding  the  sale,  but 
each  one  has  an  individual  election.*  If  the  land  is  sub- 
sequently sold  to  a  bona  fide  purchaser,  who  had  no 
notice  that  it  had  been  bought  at  the  administrator's 
sale  for  the  administrator's  benefit,  such  purchaser  will 
hold  it  as  against  the  heirs,  though  the  sale  might  have 
been  avoided  by  a  suit  against  the  first  grantee,  or  one 

1  Gen.  Stats,  c.  102,  §§  17,  18. 

"^  An  agreement  by  an  administrator  or  guardian,  to  offer  the  real 
estate  of  his  intestate  or  ward  for  sale  by  auction,  and  to  sell  the  same  to 
a  particular  individual  for  an  agreed  price  provided  no  higher  sum  should 
be  bid,  is  valid.  But  such  an  agreement  to  sell  the  estate  at  a  fixed  price, 
without  regard  to  the  biddings,  is  void.     Hunt  v.  Frost,  4  Gush.  54. 

3  Blood  V.  Ilayman,  13  Met.  231;  Jennison  v.  Hapgood,  7  Pick.  1; 
Harrington  v.  Brown,  5  Pick.  519;  Wyman  v.  Hooper,  2  Gray,  141 ;  Rob- 
bins  V.  Bates,  4  Gush.  104;  Ives  v.  Asldey,  97  Mass.  198. 

*  Litclifield  V.  Gud worth,  15  Pick.  23. 


SALES  OF  LAND  BY  EXECUTOES,  ETC.       177 

claiming  under  him,  who  had  notice  of  the  irregidarity.^ 
The  same  rules  apj^ly  in  cases  of  sales  of  land  by  guar- 
dians. 

The  essential  particulars  to  which  the  purchaser  ought 
to  look,  in  order  to  protect  himself  against  suits  by  the 
heirs,  are  specified  in  the  statute.  He  is  not  called  upon 
to  inform  himself  as  to  ever}-  particular  connected  with 
the  administrator's  or  guardian's  proceedings.  He  is  not 
expected,  for  instance,  to  inquire  whether  or  not  the 
administrator  obtained  his  license  to  sell  by  a  false  rep- 
resentation as  to  the  condition  of  the  estate.  That  is  a 
matter  in  whicli  the  heirs  are  directly  concerned,  and 
they  have  a  remedy  against  an  unfaithful  administrator 
on  his  bond.  It  is  enough  for  the  purchaser  to  know, 
so  far  as  regards  the  license,  that  it  was  granted  by  a 
court  of  competent  jurisdiction.  The  statute  provides 
that  no  sale  of  real  estate  b}^  an  executor,  administrator, 
guardian,  or  other  person  authorized  t^iereto  by  license 
of  court,  and  no  title  under  such  sale,  shall  be  avoided 
on  account  of  the  deed  not  having  been  executed  and 
delivered  within  one  year  after  the  granting  of  the 
license  for  such  sale,  nor  on  account  of  any  irregularity 
in  the  proceedings,  if  it  appears  that  the  license,  bond, 
and  notice  of  time  and  place  of  sale,  liave  been  accord- 
ing to  law,  and  that  the  premises  were  sold  at  public 
auction  and  are  held  by  one  who  purchased  them  in  good 
faith.^  If,  however,  in  any  particular,  the  purchaser  is 
guilty  of  any  collusion  with  the  administrator,  or  has 
notice  of  any  material  defect  in  the  j^roceedings,  thougli 
it  be  in  something  into  which  he  was  not  bound  to  in- 
quire, he  will  not  be  protected  by  this  provision  of  the 
statute. 

1  Blood  V.  Hayman,  13  Met.  231 ;  Wyman  w.  Hooper,  2  Gray,  141. 
a  Stat.  1864,  c.  137. 

12 


178      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

"  If  the  validity  of  a  sale  is  drawn  in  question  by 
a  person  claiming  adversely  to  the  title  of  the  deceased 
or  the  ward,  or  claiming  under  a  title  that  is  not  de- 
rived from  or  through  the  deceased  or  ward,  the  sale 
shall  not  be  void  on  account  of  any  irregularity  in 
the  proceedings,  if  it  appears  that  the  executor,  ad- 
ministrator, or  guardian  was  licensed  to  make  the  sale 
by  a  court  of  competent  jurisdiction,  and  that  he  ac- 
cordingly executed  and  acknowledged,  in  legal  form,  a 
deed  for  the  conveyance  of  the  premises.'"  ^  The  ques- 
tion at  issue  in  such  a  suit  is  not  whether  the  claimant's 
title  is  better  than  that  of  the  administrator's  ven- 
dee, but  whether  it  is  better  than  that  of  the  deceased 
person  or  ward.  If  he  shows  a  better  title,  he  will 
recover,  notwithstanding  the  convej-ance  by  the  admin- 
istrator ;  but  if  he  has  not  a  better  title  than  that  of  the 
deceased  person  or  ward,  it  is  no  concern  of  his  whether 
the  land  goes  to  the  heirs  or  to  the  person  who  holds 
under  the  administrator.  The  particular  proceedings  of 
the  administrator  or  guardian  are  therefore  not  material 
in  such  a  suit.^ 

Every  person  licensed  to  sell  lands  is  required,  upon 
application  to  the  probate  court  by  an  heir,  creditor, 
ward,  or  other  person  interested  in  the  estate,  to  make 
answer  upon  oath  to  all  matters  touching  his  exercise 

1  Gen.  Sts.  c.  102,  §  48. 

2  Actions  for  the  recovery  of  lands  sold  by  executors  and  administra- 
tors must  be  commenced  within  five  years  after  the  sale ;  and  for  lands 
sold  by  guardians,  within  five  years  after  the  termination  of  the  guardian- 
ship ;  except  that  persons  out  of  the  State,  or  under  legal  disability  to 
sue  at  the  time  when  the  right  of  action  first  accrues,  may  commence  an 
action  within  five  years  after  the  removal  of  the  disability  or  their  return 
to  the  State.  No  entry,  unless  by  judgment  of  law,  can  be  made  upon 
the  land  sold,  with  a  view  to  avoid  the  sale,  unless  within  the  time  of  hm- 
itation.     Gen.  Sts.  c.  102,  §  46. 


SALES  OF  LAND  BY  EXECUTORS,  ETC.       179 

and  fulfilment  of  the  license,  including  all  proceedings 
from  its  first  grant ;  and  if,  in  relation  to  the  exercise  of 
such  license  or  the  sale  under  it,  there  is  any  neglect  or 
misconduct  in  his  proceedings,  by  which  a  person  inter- 
ested in  the  estate  suffers  damage,  he  may  recover  com- 
pensation therefor  on  the  probate  bond  or  otherwise 
as  the  case  may  require. ^ 

The  Administrator  s  Deed.  In  his  deed  to  the  pur- 
chaser of  the  real  estate,  the  executor,  administrator,  or 
guardian  covenants  with  his  grantee  that,  in  making  the 
sale,  he  was  duly  authorized  by  the  court ;  that  he  has 
complied  with  the  order  of  the  court  by  giving  the  bond 
required  by  law,  and  by  giving  notice  of  the  time  and 
place  of  the  sale  ;  and  that  he  has  in  all  things  observed 
the  rules  and  directions  of  law  relative  thereto.  The 
date  of  the  decree  of  the  court  granting  the  license 
should  also  be  stated  in  the  deed.^ 

The  executor  or  other  person  selling  land  under 
license  is  not  required  by  any  duty  of  his  office  to  enter 
into  a  personal  covenant  for  the  absolute  perfection  of 
the  title  which  he  undertakes  to  convey,  or  for  the  valid- 
ity of  the  conveyance  beyond  his  own  acts.  He  is  at 
liberty  to  do  so,  if  he  chooses  thus  to  excite  the  confi- 
dence of  purchasers  and  enlarge  the  proceeds  of  the 
sale ;  and  he  may  engage  his  own  credit  collaterally  in 
the  conveyance.  But  such  covenant,  although  expressed 
to  be  made  in  his  official  capacity,  is  necessarily  a  per- 

»  Gen.  Sts.  c.  49. 

-  An  administrator's  deed  is  not  rendi-rcd  invalid  by  a  misrecital  of  tlie 
time  when  the  license  was  granted,  if  it  also  contains  a  recital  of  other 
facts  which  show  that  the  sale  was  made  under  the  true  license.  Thomas 
V.  Le  Baron,  8  Met.  355. 

Nor  is  a  deed  in  which  the  executrix  making  the  sale  describes  herself 
as  administratrix  thereby  rendered  invalid.  Cooper  v.  Robinson,  2  Cash. 
184.     See  Appendix,  form  No.  67. 


180      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

sonal  covenant,  for  the  breach  of  which  he  is  personally 
liable.i 

SALES   BY  FOREIGN  EXECUTORS  AND  ADMINISTRATORS. 

"  An  executor  or  administrator  appointed  in  another 
State  or  in  a  foreign  country  on  the  estate  of  a  person 
dying  out  of  this  State,  upon  whose  estate  there  is  no 
executor  or  administrator  appointed  in  this  State,  may 
file  an  authenticated  copy  of  his  appointment  in  the 
probate  court  for  any  county  in  which  there  is  real 
estate  of  the  deceased ;  after  which  he  may  be  licensed 
by  the  same  probate  court,  or  the  supreme  judicial  court, 
or  superior  court  in  any  county,  to  sell  real  estate  for 
the  payment  of  debts,  legacies,  and  charges  of  adminis- 
tration, in  the  same  manner  and  upon  the  same  terms 
and  conditions  as  are  prescribed  in  the  case  of  an  exec- 
utor or  administrator  appointed  in  this  State,  except  as 
hereinafter  provided. 

"  When  it  appears  to  the  court  granting  the  license, 
that  such  foreign  executor  or  administrator  is  bound 
with  sufficient  surety  or  sureties,  in  the  State  or  countrj'' 
in  which  he  was  appointed,  to  account  for  the  proceeds 
of  such  sale,  and  a  copy  of  such  bond  duly  authenticated 
is  filed  in  the  probate  court  where  the  copy  of  his  ap- 
pointment is  filed,  no  further  bond  for  that  purpose  shall 
be  required  of  him  here  ;  otherwise,  before  making  such 
sale  he  shall  give  bond,  with  sufficient  surety  or  sureties 
to  the  judge  of  the  probate  court  for  the  same  county, 
with  condition  to  account  for  and  dispose  of  said  pro- 
ceeds in  the  payment  of  debts,  legacies,  and  charges 
of  administration,  according  to  the  law  of  the  State  or 
country  in  which  he  was  appointed. 

"  When  such  foreign  executor  or  administrator  is 
1  Sumner  v.  Williams,  8  Mass.  201. 


SALES  OF  LAND  BY  EXECUTOES,  ETC.       181 

licensed  to  sell  more  than  is  necessary  for  the  payment 
of  debts,  legacies,  and  charges  of  administration,  he 
shall  before  making  the  sale  give  bond  with  sufficient 
surety  or  sureties  to  the  judge  of  the  probate  court, 
conditioned  to  account  before  the  same  court  for  all 
proceeds  of  the  sale  remaining  after  payment  of  said 
debts,  legacies,  and  charges,  and  to  dispose  of  the  same 
according  to  law." 

Every  foreign  executor  or  administrator  licensed  to 
sell  real  estate  must  give  notice  of  the  time  and  place 
of  sale,  and  otherwise  proceed  as  is  prescribed  for  an 
administrator  appointed  here  when  making  such  sale ; 
and  the  evidence  of  such  notice  may  be  perpetuated 
in  the  same  manner.^ 

SALES    BY   GUARDIANS. 

For  the  Payment  of  Debts.  When  the  goods,  chattels, 
rights,  and  credits  in  the  hands  of  a  guardian  are  insuf- 
ficient to  pay  all  the  debts  of  the  ward,  with  the  charges 
of  managing  the  estate,  the  guardian  may  be  licensed 
to  sell  the  real  estate  for  that  purpose,  by  the  probate 
court  for  the  county  in  which  he  is  appointed,  or  the 
supreme  judicial  court,  or  superior  court  in  any  county. 
The  guardian  must  proceed  by  petition,  and  the  petition 
may  be  substantially  in  the  same  form  as  that  of  an 
executor  or  administrator  who  applies  for  leave  to  sell 
real  estate  for  the  payment  of  debts.  It  must  appear 
that  a  necessity  exists  for  the  sale  proposed.^ 

If  it  is  represented  in  the  petition  and  appears  neces- 
sary to  sell  some  part  of  the  real  estate  of  the  ward,  and 
that  by  such  partial  sale  the  residue  of  the  estate,  or  of 
some  specific  piece  or  part  thereof  would  be  greatly  in- 

1  Gen.  Sts.  c.  102,  §§  20-23.  2  Ibid.  §  24. 


182      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

jured,  the  court  may  license  a  sale  of  the  whole  of  the 
estate,  or  of  such  part  thereof  as  it  deems  necessary  and 
most  for  the  interest  of  all  concerned,  the  guardian  first 
giving  bond,  if  lie  is  licensed  to  sell  more  than  is  neces- 
sary for  the  payment  of  debts,  to  account  for  and  dis- 
pose of  the  surplus  proceeds  according  to  law.  The 
condition  of  such  bond  is  the  same  as  that  of  a  bond 
given  by  executors  and  administrators  under  like  cir- 
cumstances.^ 

For  3Iamtenance  and  Investment.  When  the  income 
of  a  ward's  estate  is  insufficient  to  maintain  him  and  his 
family,  or  when  it  appears  that  it  would  be  for  the  benefit 
of  a  ward  that  his  real  estate  or  any  part  thereof  be  sold, 
and  the  proceeds  put  out  at  interest  or  invested  in  some 
productive  stock,  his  guardian  may  be  licensed  to  sell 
the  same.- 

A  father  is  bound,  to  the  extent  of  his  ability,  to  sup- 
port his  minor  child  ;  but  if  the  minor's  property  is  suf- 
ficient for  his  maintenance  and  education  in  a  more 
expensive  manner  than  his  father  can  reasonably  afford, 
regard  being  had  to  the  situation  of  the  father's  family 
and  to  all  the  circumstances  of  the  case,  the  expenses  of 
the  maintenance  and  education  of  such  child  may  be  de- 
frayed out  of  his  own  property,  in  whole  or  in  part,  as 
shall  be  deemed  reasonable  by  the  probate  court ;  and 
when  necessary  his  real  estate  may  be  sold  for  that  pur- 
pose by  the  guardian  under  license.^ 

To  obtain  such  license,  the  guardian  must  present  to 
the  court  a  petition  setting  forth  the  condition  of  the 
estate,  and  the  facts  and  circumstances  upon  Avhich  his 

1  Gen.  Sts.  c.  102,  §  25. 

2  Ibid.  §  26.  A  guardian  may  be  licensed  to  sell  the  homestead  right 
of  his  ward.     Ibid.  c.  101,  §  14. 

«  Ibid.  c.  109,  §  21. 


SALES  OP  LAND  BY  EXECUTORS,  ETC.       183 

application  is  founded.  If  after  a  full  examination,  on 
the  oath  of  the  petitioner  or  otherwise,  it  appears  either 
that  it  is  necessary,  or  that  it  would  be  for  the  benefit 
of  the  ward,  that  the  real  estate  or  any  part  of  it  should 
be  sold,  the  court  may  grant  a  license  therefor,  specify- 
ing therein  whether  the  sale  is  to  be  made  for  the  main- 
tenance of  the  ward  and  his  family,  or  that  the  proceeds 
may  be  put  out  and  invested.^ 

Guardians  licensed  to  sell  real  estate  for  maintenance 
of  a  ward  or  investment,  are  required,  before  the  sale, 
to  give  bond,  with  sufficient  suret}^  or  sureties,  to  the 
judge  of  the  probate  court  for  the  county  in  which  they 
are  appointed,  with  condition  to  sell  the  same  in  the 
manner  prescribed  for  sales  of  real  estate  by  executors 
and  administrators,  and  to  account  for  and  dispose  of  the 
proceeds  in  the  manner  provided  by  law.^ 

The  estate  of  a  minor  may  be  sold  for  the  purpose  of 
investing  the  proceeds  upon  the  petition  and  representa- 
tion of  any  friend  of  the  minor  ;  and  in  such  case  the 
court  may  authorize  the  guardian  or  any  other  suitable 
person  to  convey  the  estate.  When  a  sale  for  such  pur- 
pose is  ordered  on  the  petition  of  the  guardian  of  a  minor, 
the  court  may  authorize  any  suitable  person  other  than 
the  guardian  to  sell  and  convey  the  estate.  The  statute 
provisions  in  relation  to  the  licenses  and  sales  on  the 
petitions  of  guardians  apply  to  licenses  and  sales  on  the 
petition  of  a  friend  of  the  minor,  except  that  upon  a  sale 
by  a  person  other  than  the  guardian,  the  proceeds  are 
to  be  forthwith  paid  to  the  guardian  upon  his  giving 
bond,  with  sufficient  sureties,  to  the  judge  of  tlie  pro- 
bate court  for  the  county  where  the  real  estate  is  situ- 
ate, conditioned  to  account  tlicrefor.  If  there  is  no 
guardian,  the  proceeds  are  required  to  be  put  out  and 
1  Gen.  Sts.  c.  102,  §  27.  2  ibid.  §  28. 


184      PROCEKDINGS  IN  THE  PROBATE  COURTS. 

invested  by  the  person  authorized  to  sell  the  estate,  in 
like  manner  as  is  required  of  a  guardian. ^ 

No  license  can  be  granted  to  a  guardian  until  after 
notice,  by  piihlic  advertisement  or  otherwise,  as  the  court 
shall  order,  for  the  next  of  kin  of  the  ward,  and  all  per- 
sons interested  in  the  estate,  to  appear  and  sliow  cause 
why  tlie  same  should  not  be  granted  ;  but  such  notice 
may  be  dispensed  with,  if  all  persons  interested  signify 
in  writing  their  assent  to  the  sale.  All  who  are  next  of 
kin,  and  heirs  apparent  or  presumptive  of  the  ward,  are 
considered  by  the  statute  as  interested  in  the  estate,  and 
may  appear  as  such  and  answer  to  the  petition  of  the 
guardian. 

No  guardian,  except  in  the  case  of  minors,  can  be 
licensed  to  sell  his  ward's  real  estate  without  seven 
days'  previous  notice  of  his  petition  therefor  to  the 
overseers  of  the  poor  of  the  place  where  the  ward  is 
an  inhabitant  or  resides.  The  notice  may  be  served 
upon  any  one  of  the  overseers.  This  provision  does 
not  apply  when  the  ward  resides  out  of  this  State.^ 

Guardians  appointed  in  this  State  or  elsewhere,  when 
licensed  to  sell  real  estate,  are  required  to  give  notice 
of  the  time  and  place  of  sale,  and  otherwise  proceed 
therein  as  prescribed  in  like  cases  for  executors  and 
administrators,  except  when  licensed  to  sell  fractional 
shares  at  private  sale ;  and  the  evidence  of  giving  notice 
may  be  perpetuated  in  the  same  manner. 

SALE  OF  FRACTIONAL  SHARES  OF  REAL  ESTATE. 

When  it  appears,  by  the  petition  of  the  guardian  and 
upon  the  hearing  thereon,  that  the  ward's  interest  in 
the  real  estate  is  a  fractional  share  thereof,  or  a  right  or 

1  Gen.  Sts.  c.  102,  §§  31,  32.  2  Stat.  1874,  c.  202. 


SALES   OP  LANDS   BY    EXECUTORS,  ETC.  185 

interest  in  common  with  others,  and  that  an  advanta- 
geous offer  has  been  made  to  the  guardian  for  the  purchase 
thereof,  and  that  the  interest  of  all  parties  concerned  will 
be  best  promoted  by  an  acceptance  of  such  offer,  the  court 
may  authorize  the  sale,  in  accordance  with  the  offer,  at 
private  sale,  or  upon  such  terms  as  may  be  adjudged 
best,  with  or  without  public  notice.  The  guardian  so 
licensed  may  sell  at  public  auction,  if  he  deems  it  best 
so  to  do.^ 

SALES   BY   FOREIGN    GUARDIANS. 

"  When  a  minor,  insane  person,  or  spendthrift,  resid- 
ing out  of  this  State,  is  under  guardianship  in  the  State 
or  country  in  which  he  resides,  and  has  no  guardian  ap- 
pointed in  this  State,  the  foreign  guardian  may  file  an 
authenticated  copy  of  his  appointment  in  the  probate 
court  for  any  county  in  which  there  is  real  estate  of  the 
ward ;  after  which  he  may  be  licensed  to  sell  the  real 
estate  of  the  ward  in  any  count}^  in  the  same  manner 
and  upon  the  same  terms  and  conditions  as  are  prescribed 
in  this  chapter  (Gen.  Sts.  c.  102),  in  the  case  of  a  guar- 
dian appointed  in  this  State,  except  as  hereinafter  pro- 
vided, 

"  When  it  appears  to  the  probate  court,  that  a  foreign 
guardian,  licensed  to  sell  real  estate  for  the  payment  of 
tlie  debts  of  his  ward,  is  bound  with  sufficient  surety  or 
sureties,  in  the  State  or  country  where  he  was  appointed, 
to  account  for  the  proceeds  of  such  sale,  and  an  authen- 
ticated copy  of  such  bond  is  filed  in  said  court,  no  fur- 
ther bond  shall  be  required  ;  otherwise  he  shall  give 
bond  in  like  manner  as  is  prescribed  in  this  chapter  in 
case  of  sales  by  foreign  executors  or  administrators. 

1  Stilt.  1«72,  c.  278. 


186      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

"  When  such  foreign  guardian  is  licensed  to  sell  more 
than  is  necessary  to  pay  debts  and  charges,  he  shall,  be- 
fore making  the  sale,  give  bond  with  sufficient  surety  or 
sureties,  to  the  judge  of  the  probate  court,  conditioned 
to  account  before  the  same  court  for  all  proceeds  of  the 
sale  remaining  after  payment  of  said  debts  and  charges, 
and  to  dispose  of  the  same  according  to  law.^ 

"  Ever}'  foreign  guardian  licensed  to  sell  real  estate 
for  the  maintenance  of  his  ward  or  investment,  shall 
before  making  the  sale  give  bond  with  sufficient  surety 
or  sureties  to  the  judge  of  the  probate  court,  conditioned, 
in  addition  to  the  condition  required  in  the  bond  of  other 
guardians  in  such  case,  that  he  will  account  for  and  disr 
pose  of  the  proceeds,  or  so  much  thereof  as  may  remain 
upon  the  final  settlement  of  his  accounts,  to  such  per- 
sons, and  in  such  proportions,  as  the  real  estate  would 
have  descended  or  been  disposed  of  according  to  the 
laws  of  this  State  if  it  had  not  been  sold."  ^ 

All  proceedings  in  probate  courts  respecting  sales  by 
a  foreign  executor,  administrator,  or  guardian  must  be 
had  in  the  court  for  the  county  in  which  an  authenti- 
cated copy  of  his  appointment  is  first  filed.^ 

SALES   BY   PUBLIC    ADMESTISTRATOKS. 

Public  administrators  may  be  licensed  to  sell  real 
estate  for  the  payment  of  debts.  The  petition  for  such 
sale  and  the  proceedings  thereon,  and  under  the  license, 
are  the  same  as  are  prescribed  for  other  administrators.* 

Sales  by  public  administrators  are  not  limited  to  cases 
where  the  sales  are  necessary  for  the  payment  of  debts. 
The  statute  provides  that  after  three  years  from  the  date 

1  Gen.  Sts.  c.  102,  §§  33-35.  2  ibid.  §  36. 

3  Ibid.  §  42.  ■•  Ibid.  c.  95,  §  10. 


SALES  OP  LANDS  BY  EXECUTORS,  ETC.       187 

of  letters  of  administration  to  a  public  administrator, 
he  may  sell  the  real  estate,  although  not  necessary  for 
the  payment  of  debts,  upon  obtaining  a  license  from  the 
probate  court  if  it  appears  to  the  judge  to  be  for  the 
interest  of  all  concerned.  The  petition,  in  such  case, 
should  be  framed  in  accordance  with  the  facts  upon 
which  it  is  founded,  and  the  public  administrator  gives 
the  bond,  and  otherwise  proceeds  as  is  required  of  ad- 
ministrators licensed  to  sell  real  estate  more  than  is 
necessary  for  the  payment  of  debts. ^ 

CONVEYANCES  OF  LANDS  BY  EXECUTOKS,  ADMINISTRA- 
TORS, AND  GUARDIANS  UNDER  CONTRACTS  —  SPE- 
CIFIC  PERFORMANCE. 

"  When  a  person  who  has  entered  into  a  written 
agreement  for  the  conveyance  of  real  estate  dies  or  is 
put  under  guardianship  before  making  such  conveyance, 
the  probate  court  shall  have  jurisdiction  concurrent  with 
the  supreme  judicial  court  to  enforce  a  specific  perform- 
ance, and,  upon  a  petition  therefor  presented  by  any 
person  interested  in  the  conveyance,  shall  order  the 
petitioner  to  give  notice  to  all  persons  interested,  that 
they  may  appear  and  show  cause  either  for  or  against 
the  prayer  of  the  petition. 

"  If  upon  the  hearing  it  appears  that  the  deceased,  if 
living,  or  the  ward,  if  not  under  guardianship,  would  be 
required  to  make  the  conveyance,  tlie  court  shall  order 
the  executor  or  administrator  of  the  deceased  or  the 
guardian  of  the  ward  to  make  the  same  ;  and  when  so 
made  it  shall  liave  like  force  and  effect  as  if  made  by 
the  person  who  entered  into  the  agreement  to  convey."^ 

1  Gen.  St8.  c.  95,  §  IL 

2  Ibid.  c.  117,  §§  5,  6.  Kecd  v.  Wliitney,  7  Gray,  537 ;  Miller  v.  Good- 
win, 8  Gray,  642.     See  Appendix,  form  Nos.  G8,  G9. 


188  PROCEEDINGS   IN   THE   PROBATE   COURTS. 

RELEASE   OF  INTERESTS   IN  LAND   BY   EXECUTORS  AND 
OTHERS. 

The  statute  provides  that  probate  courts  "  may  author- 
ize executors,  administrators,  guardians,  and  trustees  to 
release  and  discharge,  upon  such  terms  and  conditions 
as  appear  proper,  any  vested,  contingent,  or  possible 
right  or  interest  l)elonging  to  the  persons  or  estates  by 
them  represented,  in  or  to  any  real  or  personal  estate, 
"whenever  it  appears  to  be  for  the  benefit  of  the  persons 
or  estates  in  trust."  ^ 

This  provision  does  not  apply  to  sales  of  the  land 
itself,  and  has  not  any  reference  to  sales  of  land  by  ex- 
ecutors and  administrators  for  the  payment  of  debts  and 
legacies,  nor  to  sales  by  guardians  for  maintenance  or 
investment.  Leave  to  release  the  remote  interests  men- 
tioned in  the  statute  may  be  granted,  when  it  aj^pears  to 
be  for  the  benefit  of  the  parties  interested,  whether  the 
proceeds  are  necessary  for  the  payment  of  debts  and 
legacies  or  not.  The  person  applying  for  leave  to  re- 
lease such  an  interest  should  state  in  his  petition  the 
names  and  residences  of  all  persons  interested,  and  fully 
describe  the  nature  of  the  interest  to  be  released.  The 
same  notice  of  the  petition  must  be  given  as  is  required 
in  cases  of  sale  for  the  payment  of  debts.^  When  leave 
is  granted,  the  court  directs  the  manner  in  which  the 
release  shall  be  made. 

mortgage  of  real  estate  by  executors  and 
ad:ministrators. 

Probate  courts  may  authorize  administrators  to  mort- 
gage the  real  estate  of  their  intestates  for  tlie  purpose  of 
1  Gen.  Sts.  c.  101,  §  11.  ^  Stat.  1863,  c.  230. 


SALES  OF  LANDS  BY  EXECUTORS,  ETC.       189 

raising  money  to  pay  old  debts,  or  to  remove  liens  exist- 
ing thereon.  Such  authority  cannot  be  given  except 
after  a  hearing,  upon  a  petition  from  the  executor  or 
administrator,  or  some  party  interested  therein.  The 
petition  must  set  forth  a  description  of  the  lands  to  be 
mortgaged,  the  amount  of  money  necessary  to  be  raised, 
and  the  reasons  therefor  ;  and  the  written  assent  of  all 
the  heirs  or  their  guardians  must  be  obtained,  unless  all 
join  in  the  petition. ^ 

The  court  having  jurisdiction  of  the  estate  of  any 
deceased  person,  when  it  shall  appear  to  the  court  to 
be  for  the  interest  of  the  estate,  may,  on  petition,  notice, 
and  hearing,  authorize  the  executors  and  administrators 
with  the  will  annexed  to  moi'tgage  the  real  estate,  or 
any  part  thereof,  of  the  testator,  for  the  purpose  of  pay- 
ing debts,  legacies,  and  charges  of  administration,  or  of 
paying  any  lien  or  mortgage  on  such  estate,  or  any  part 
thereof,  or  to  make  an  agreement  for  the  extension  or 
renewal  of  an}'  mortgage  already  subsisting  thereon. 

In  such  cases  the  court  prescribes  the  maximum  rate 
of  interest,  and  may  order  the  whole  or  any  part  of  the 
principal  of  the  mortgage  to  be  paid,  from  time  to  time, 
out  of  the  income  of  the  estate  mortgaged,  and  may 
further  order  the  executor  or  administrator  with  the 
will  annexed  to  give  bonds,  unless  exempted  there- 
from l»y  the  laws  relating  to  the  giving  of  bonds  iu 
like  cases.2 

MORTGAGE   OF   REAL  ESTATE   BY  GUARDIANS. 

Guardians  may  be  authorized  to  mortgage  the  real 
estate  of  their  wards  whenever,  in  tlie  judgment  of  the 
court,  it  is  necessary  or  expedient.  The  guardian  so 
authorized  is  required   to  give  a  bond,  with  sufficient 

»  Stat.  1804,  c.  212.  2  Ibid.  1876,  c.  79. 


190      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

surety  or  sureties,  for  the  faithful  application  of  the 
money  received  on  such  mortgage.-^ 

MORTGAGE   OF   REAL   ESTATE   BY   TRUSTEES. 

"  Probate  courts  having  jurisdiction  under  the  pro- 
visions of  this  act,  after  notice  to  all  persons  interested, 
and  hearing  thereon,  may  authorize  any  trustee  or  trus- 
tees appointed  under  any  will,  trust,  deed,  or  indenture, 
and  having  the  control  or  management  of  any  real  estate, 
to  mortgage  the  same  for  the  purpose  of  paying  the  sums 
assessed  thereon  for  betterments,  or  the  expense  of  re- 
pairs and  improvements  thereon  made  necessar}^  by  such 
betterments,  or  by  the  lawful  taking  of  such  estate,  or 
any  part  thereof,  by  any  city  or  town,  or  for  the  purpose 
of  paying  the  expense  of  erecting,  altering,  completing, 
repairing,  or  improving  any  building  on  such  estate, 
when  it  shall  appear  to  the  court  to  be  for  the  interest 
of  such  estate  ;  and  the  interest  on  such  mortgage,  and 
any  portion  of  the  principal  which  the  court  may  order, 
shall  be  paid  out  of  the  income  derived  from  the  estate 
mortgaged  as  herein  provided. 

"  The  petition  shall  set  forth  a  description  of  the  estate 
to  be  mortgaged,  the  amount  necessary  to  be  raised,  and 
the  purposes  for  which  the  same  is  to  be  used,  and  shall 
be  made  to  the  probate  court  for  the  county  where  the 
will  under  which  such  trustee  or  trustees  were  appointed 
was  proved,  in  case  the  trust  was  created  by  will,  or  in 
the  county  where  the  trust  estate,  or  any  part  thereof 
is  located,  in  case  such  trust  was  created  b}^  deed  or 
indenture  ;  and  the  decree  of  the  court  thereon  shall  fix 
the  amount  for  which  the  mortgage  may  be  given,  and 
the  rate  of  interest  which  may  be  paid  thereon. 
1  Stat.  1871,  c.  282. 


SALES  OF  LANDS  BY  EXECUTORS,  ETC.       191 

"  The  mortgage  shall  set  forth  that  the  same  was  exe- 
cuted by  license  of  court,  and  the  date  of  the  license  ; 
but  the  court  shall  require  such  trustee  or  trustees  to 
give  bond  with  sufficient  sureties  for  the  faithful  applica- 
tion of  the  money  received  on  such  mortgage;  provided, 
however,  that  no  bond  shall  be  required,  when  all  per- 
sons who  are  interested  in  the  estate,  other  than  credit- 
ors, being  of  full  age  and  legal  capacity,  shall  so  request, 
or  when  the  trustee  or  trustees  are  exempted  from  giv- 
ing bond  by  the  will,  deed,  or  indenture  creating  the 
trust."  1 

"  Whenever  any  real  estate  is  incumbered  by  any  con- 
tingent remainder,  executory  devise  or  power  of  appoint- 
ment, the  supreme  judicial  court  (or  the  probate  court 
for  the  county  in  which  such  real  estate  is  situated), 
upon  petition  of  any  party  who  has  an  estate  in  posses- 
sion in  such  real  estate,  may  appoint  a  trustee  for  such 
estate,  and  authorize  said  trustee  to  mortgage  the  estate 
for  such  amounts,  on  such  terms  and  conditions,  and  for 
such  purposes,  as  may  seem  to  such  court  judicious  or 
expedient,  and  shall  fix  the  form  and  amount  of  the 
bond  to  be  given  by  such  trustee. 

"  Notice  of  the  proceedings  shall  be  given  to  all  persons 
who  are  or  may  become  interested  in  the  real  estate,  and 
to  all  persons  whose  issue,  not  in  being,  may  become 
interested  therein,  as  the  court  may  order.  The  court 
shall,  in  all  such  cases,  appoint  a  suitable  person  to  ap- 
pear and  act  in  such  proceedings  as  the  next  friend  of 
all  minors,  persons  not  ascertained  or  persons  not  in 
being,  who  may  be  or  may  become  interested  in  such  real 
estate,  the  cost  of  whose  appearance  and  services,  includ- 
ing compensation  of  counsel,  to  be  determined  by  the 
court,  shall  Ije  paid  as  the  court  may  order,  either  out 
I  Stat.  1872,  c.  370. 


192      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

of  the  proceeds  of  the  real  estate  or  by  the  petitioners, 
in  which  latter  case  execution  may  issue  in  the  name  of 
such  next  friend.  An  order  or  decree  made  in  any  such 
proceedings,  and  a  mortgage  of  real  estate  thereunder, 
shall  be  binding  and  conclusive."  ^ 

The  court  having  jurisdiction  of  any  trust  created  by 
will  or  other  written  instrument,  when  it  shall  appear  to 
the  court  to  be  for  the  interest  of  the  trust  estate,  may, 
on  petition,  notice  and  hearing,  authorize  the  trustee  or 
trustees  to  mortgage  the  real  estate,  or  any  part  thereof, 
of  which  they  are  seised  or  possessed,  for  the  purpose  of 
paying  any  lien  or  mortgage  on  such  estate  or  any  part 
thereof,  or  to  make  an  agreement  for  the  extension  or 
renewal  of  any  mortgage  already  subsisting  thereon. 

In  such  case  the  court  prescribes  the  maximum  rate 
of  interest,  and  may  order  the  interest,  and  the  whole 
or  any  part  of  the  principal  of  the  mortgage,  to  be  paid 
from  time  to  time  out  of  the  income  of  the  estate  mort- 
gaged ;  and  may  further  order  the  trustee  or  trustees  to 
give  bonds,  unless  exempted  therefrom  by  the  laws  re- 
lating to  the  giving  of  bonds  in  like  cases.^ 

Every  mortgage  executed  by  an  executor,  administra- 
tor, or  trustee,  must  set  forth  the  fact  that  the  same  is 
executed  by  license  of  the  court,  and  the  date  of  such 
license.  Every  such  mortgage  may  contain  a  power  of 
sale.^ 

SALE   OF   STANDING   OR   GROWING  WOOD. 

When  the  income  of  the  estate  of  a  ward  is  insuffi- 
cient to  maintain  him  or  his  family,  or  when  it  appears 
that  it  w^ould  be  for  the  benefit  of  a  ward  that  the  stand- 
ing or  growing  wood  on  his  real  estate,  or  any  part 

1  Stat.  1871,  c.  322.  2  ibid.  1876,  c.  199. 

8  Ibid.  1873,  c.  280. 


SALES  OF  LANDS  BY  EXECUTORS,  ETC.       193 

thereof,  should  be  sold,  and  the  proceeds  put  out  at  in- 
terest, or  invested  in  productive  stock,  his  guardian  may 
sell  such  wood,  and  grant  the  privilege  of  entering  upon 
the  land,  and  cutting  and  carrying  away  the  same  within 
such  time  as  he  may  allow,  upon  obtaining  a  license 
therefor,  and  proceeding  therein  as  provided  b}^  law  for 
the  sale  of  the  real  estate  of  wards  by  guardians.^ 

The  probate  court,  when  it  appears  that  the  wood  and 
timber  standing  on  land  held  in  dower,  or  on  land  the 
use  and  improvement  of  which  belongs,  for  life  or  other- 
wise, to  any  person  other  than  the  owner  of  the  fee 
therein,  has  ceased  to  improve  by  growth,  or  for  any  cause 
ought  to  be  cut,  may  appoint  a  trustee,  and  authorize 
and  empower  him  to  sell  and  convey  said  wood  and  tim- 
ber, in  the  way  and  manner  provided  by  law  for  the  sale 
of  real  estate  by  guardians,  to  be  cut  and  carried  away 
within  the  time  limited  in  the  order  of  sale,  and  to  hold 
and  invest  the  proceeds  thereof,  after  paying  the  ex- 
penses of  such  sale  therefrom,  and  pay  over  the  income, 
above  the  taxes  and  other  expenses  of  the  trust,  to  the 
person  entitled  to  such  dower,  or  right  to  the  use  and 
improvement,  while  the  same  continues  ;  and,  at  the  ex- 
piration of  such  dower  or  right  to  the  use  and  improve- 
ment, to  pay  the  principal  sum  to  the  owner  of  such 
land.  When  said  wood  and  timber  has  been  cut  off,  as 
aforesaid,  no  more  wood  or  timber  shall  be  cut  on  such 
land  by  the  person  entitled  to  such  dower,  or  use  and 
improvement,  without  permission  from  said  court."  ^ 

1  Stat.  1867,  c.  23L  2  Ibid.  1869,  c.  249. 


18 


CHAPTER  XV. 

ACCOUNTS     OF     EXECUTORS,     ADMINISTRATORS, 
GUARDIANS,    AND   TRUSTEES. 

Every  executor  and  administrator  is  required  by 
statute  and  by  the  condition  of  his  bond  to  render  to 
the  probate  court  a  true  account  of  his  administration 
within  one  year  after  giving  bond,  and  such  further  ac- 
counts from  time  to  time  as  ma}^  be  necessary  or  conven- 
ient, or  as  the  probate  court  may  require.^ 

A  public  administrator,  who  gives  a  separate  bond  for 
each  estate  settled  by  him,  is  held  to  account  like  other 
administrators ;  if  he  gives  a  general  bond  covering  all 
estates  intrusted  to  him,  he  is  held  to  render  an  account 
of  each  estate  within  one  year  after  the  date  of  his  let- 
ters of  administration  thereon,  and  at  least  once  in  each 
year  until  the  trust  is  fulfilled ;  and  he  is  held  further 
to  render  an  account  to  the  probate  court  first  held  in 
his  county  after  the  first  day  of  January  in  each  year, 
of  all  balances  of  estates  then  remaining  in  his  hands.^ 

Special  administrators  are  held  to  account  whenever 
required  by  the  probate  court.^ 

Guardians  are  bound  to  render  an  account  within  one 
year  after  their  appointment,  and  as  often  as  once  in 
three  years  thereafter,  and  at  such  other  times  as  the 
probate  court  directs;  and  at  the  expiration  of    their 

1  Gen.  Sts.   c.  94,  §  2 ;  c.  98,  §  9.  2  ibid.  c.  95,  §§  6-8. 

3  Ibid.  c.  94,  §  7.     Stat.  1876,  c.  200. 


ACCOUNTS    OF   EXECUTORS,  ADMINISTRATORS,  ETC.      195 

trust  to   settle   their  accounts  in    court  or  with  their 
wards.^ 

Trustees  are  held  to  account  within  one  year,  and  at 
any  other  times  when  required  by  the  probate  court.^ 

It  is  the  practice,  to  some  extent,  of  executors  and 
other  trust  officers  appointed  by  the  probate  court,  to 
settle  their  accounts  with  the  parties  interested  without 
rendering  a  final  account  to  the  court,  and,  in  a  majority 
of  cases,  no  inconvenience  results  from  that  mode  of 
proceeding.  Such  a  settlement,  however,  between  the 
administrator  and  the  heirs,  or  between  the  guardian 
and  his  ward,  is  not  a  compliance  with  the  condition 
of  his  bond;  and  he  may  be  cited,  on  the  petition  of 
persons  interested,  to  render  his  account  in  the  probate 
court  notwithstanding  such  settlement.  He  may  be 
held  to  account,  although  he  produces  the  receipts  of 
all  the  heirs  acknowledging  the  payment  of  their  dis- 
tributive shares  in  full.^  Such  receipts  are  evidence 
for  the  consideration  of  the  probate  court  in  determin- 
ing whether  a  further  settlement  shall  be  ordered  or 
not,  but  they  do  not  estop  the  heirs,  or  the  ward,  from 
calling  on  the  administrator,  or  the  guardian,  to  settle 
his  accounts  in  court. 

When  one  of  two  or  more  joint  executors  or  admin- 
istrators dies,  or  is  removed  before  the  administration 
is  completed,  the  account  is  rendered  by  the  other  or 
others.*  When  a  sole  executor  or  other  trust  officer 
dies,  not  having  settled  his  account,  it  should  be  render- 

1  Gen.  Sts.  c.  109,  §  16.  2  ibid.  c.  100,  §  1. 

3  Bard  v.  Wood,  3  Met.  74;  Clark  v.  Clay,  11  Foster  (N.  II.),  393. 
Notwitlistanding  tlie  settlement  and  receipt,  tlie  guardian  is  bound  to  an- 
swer on  oath  proper  interrogatories  respecting  his  account  and  the  items 
thereof,  and  the  ward  may  introduce  evidence  touching  the  execution 
and  validity  of  the  receipt.     Wade  v.  Lobdell,  4  Cush.  611. 

*  Gen.  Sts.  c.  101,  §  2. 


196      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

ed  by  his  executor  or  administrator,^  and  it  has  been 
held  that  it  may  be  settled  by  the  administrator  of  one 
of  his  sureties.^ 

CITATION   TO   RENDER   ACCOUNT. 

If  the  executor  or  other  officer  neglects  or  unreason- 
ably delays  the  settlement  of  his  account  in  the  probate 
court,  he  may  be  cited  for  that  purpose  on  the  petition 
of  any  person  interested  in  the  estate  concerning  which 
the  account  is  to  be  rendered.  The  petition  should  set 
forth  the  particulars  in  which  the  executor  has  been 
negligent,  in  accordance  with  the  facts  of  the  case.^ 
Upon  such  petition,  the  court  will  issue  a  citation  to  the 
delinquent  party,  which  must  be  served  in  the  manner 
directed  by  its  terms.  If,  after  being  cited,  he  neglects 
to  appear  or  to  render  his  account,  leave  will  be  granted 
to  bring  a  suit  on  his  bond ;  and  he  will  be  liable  in 
like  manner  and  to  the  same  extent  as  an  executor 
in  his  own  wrong.^ 

FORM   OF    ADMINISTRATION   ACCOUNT. 

In  his  account,  the  executor  or  administrator  charges 
himself  with  the  amount  of  assets  that  have  come  to  his 
hands,  and  asks  to  be  allowed  for  the  amount  of  all  debts 
paid  by  him,  and  the  expenses  of  the  administiation. 
With  the  account,  stated  in  this  form,  must  be  filed  a 
schedule,  stating  the  names  of  all  persons  of  Avhom  he 
has  received  money,  the  sum  received  from  each,  and 
the  time  when  each  sum  was  received  ;  and  a  second 
schedule,  giving  the  several  sums  paid  by  him,  the  per- 

1  The  guardian's  administrator  may  be  cited  for  that  purpose  on  peti- 
tion of  the  ward.     Gregg  r.  Gregg,  15  N.  H.  190. 

2  Curtis  V.  Bailey,  1  Pick.  199. 

8  See  Appendix,  form  No.  70.  *  Gen.  Sts.  c.  98,  §  11. 


ACCOUNTS    OF    EXECUTORS,  ADMINISTRATORS,  ETC.      197 

son  to  whom,  and  the  purpose  for  which,  each  sum  was 
paid.  The  blanks,  to  be  had  on  application  at  the  pro- 
bate offices,  exhibit  the  form  in  which  the  account  should 
be  stated.  If  the  estate  has  been  represented  insolvent^ 
the  executor  or  administrator  does  not  ask  in  his  first 
account  to  be  allowed  any  sum  for  the  payment  of  debts 
owed  by  the  deceased,  he  having  no  authority  to  pay  the 
debts  except  under  a  decree  of  distribution  issued  by  the 
court.  He  credits  himself  with  the  charges  of  admin- 
istration, the  amount  of  loss,  if  any,  necessarily  sustained 
by  the  estate  in. his  hands,  and  with  the  amount  of  the 
allowance,  if  any,  made  by  the  court  to  the  widow  or 
minor  children  of  the  deceased.  The  balance,  thus  ex- 
hibited, remains  in  his  hands,  until  he  is  ordered  by  the 
court  to  distribute  it  among  the  creditors. 

If  the  deceased  insolvent  had  been  a  member  of  a  co- 
partnership and  died  in  possession  of  both  partnership 
estate  and  separate  estate,  and  both  partnership  and 
separate  claims  are  proved  against  his  estate,  the  ad- 
ministrator should  so  state  his  account  as  to  exhibit  the 
amount  of  the  partnership  estate  in  his  hands  distinct 
from  the  separate  estate.  The  expenses  of  administra- 
tion in  such  case  are  to  be  deducted  from  the  whole 
amount  received  by  the  executor,  and  the  net  proceeds 
of  the  joint  stock  are  approj)riated  to  paj'  the  creditors 
of  the  firm,  and  the  net  proceeds  of  the  separate  estate 
to  pay  the  separate  creditors  ;  the  surplus,  if  any,  of  one 
fund  being  applied  towards  the  liquidation  of  debts  pay- 
able out  of  the  other. 

WITH   WHAT    THE    EXECUTOR    OR    ADMINISTRATOR    IS 
CHARGEABLE. 

The  first  item  with  which  the  executor  or  adminis- 
trator charges  himself  in  the  schedule  annexed  to  his 


198      PROCEEDINGS  IX  THE  PROBATE  COURTS. 

first  account  is  the  value  of  the  personal  estate  as  shown 
by  the  inventory.  He  should  chai'ge  himself  with  the 
full  amount  of  the  appraisal  of  tlie  personal  jiroperty, 
whether  he  has  disposed  of  it  for  more  or  less  than  that 
amount. 

If  he  has  sold  the  personal  estate  for  more  than  its  ai> 
praised  value,  he  next  charges  himself  with,  the  amount 
of  the  gain. 

After  thus  accounting  for  the  personal  property  in- 
ventoried and  for  the  gain,  if  any,  on  its  sale,  he  charges 
himself  with  all  proceeds  of  real  estate  sold  by  him  for 
the  payment  of  debts  and  legacies,  with  the  proceeds  of 
any  personal  estate  not  included  in  the  inventory,  and 
with  all  interest,  profit,  and  income  that  may  have  come 
to  his  hands  from  the  personal  estate  of  the  deceased.^ 

1  Manure  taken  from  the  barnyard  of  a  homestead  and  piled  on  the 
land,  thougli  not  broken  up  nor  rotten,  nor  in  a  fit  state  for  incorporation 
with  the  soil,  is  part  of  the  realty,  and  is  not  chargeable  to  the  adminis- 
trator as  personal  estate.  Fay  v.  Muzzey,  13  Gray,  53.  But  he  is  charge- 
able with  the  value  of  manure  when  it  is  personal  property,  although  he 
has  spread  it  in  the  usual  course  of  good  husbandry  on  the  land  of  the 
deceased,  and  has  sold  the  land  for  payment  of  debts.     Ibid. 

When  the  administrator  of  an  insolvent  estate  sold  real  estate,  imder 
license  of  probate  court,  and  the  land  sold  was  mortgaged,  and  the  mort- 
gage recorded,  but  was  unknown  to  him  or  the  purchaser  at  the  time  of 
the  sale,  it  was  held  that  he  might  apply  the  proceeds  of  the  sale  to  the 
payment  in  full  of  the  mortgage  debt,  and  that  he  was  chargeable  in  his 
account  only  for  the  balance  of  such  proceeds.  Church  v.  Savage,  7 
Cush.  440. 

Money  received  by  an  administrator  from  the  government  of  the 
United  States,  by  means  of  a  treaty  with  a  foreign  nation,  as  an  indem- 
uity  for  property  taken  from  the  intestate  by  such  foreign  nation,  is 
assets  in  the  administrator's  hands.     Foster  v.  Fifield,  20  Pick.  67. 

When  personal  property  attached  by  the  trustee  process  was  assigned 
by  the  owner  subject  to  the  attachment,  and  the  attacliment  was  dissolved 
by  the  owner's  death,  it  was  held  that  the  property  passed  by  the  assign- 
ment, and  was  not  assets  in  the  administrator's  hands.  Coverdale  i". 
Aldrich,  19  Pick.  301. 

Where  an  executor  sold  lands  of  the  testator  and  became  himself  a 


ACCOUNTS  OP  EXECUTORS,  ADMINISTRATORS,  ETC.   199 

He  is  chargeable  with  the  value  of  personal  property 
lost  through  his  negligence,  though  it  never  came  into 
his  actual  possession.^  And  if  he  has  received  money 
not  belonging  to  the  estate,  and  received  it  in  his  official 
capacity,  he  must  charge  himself  with  it,  unless  he  can 

purchaser  with  two  others,  under  aa  agreement  to  share  equally  in  the 
profits  of  resale,  he  was  held  to  account  for  one  third  part  of  such  profits. 
Jennison  v.  Hapgood,  10  Pick.  93. 

If,  to  prevent  a  sale  of  the  real  estate,  the  heirs  furnish  tlie  executor 
or  administrator  with  money  sufficient  for  the  payment  of  all  claims 
against  the  estate  and  the  expense  of  administration,  and  thereby  render 
any  sale  of  the  real  estate  unnecessary,  the  money  so  furnished  by  them 
is  assets  of  the  estate,  to  be  accounted  for  by  the  administrator.  Fay  v. 
Taylor,  2  Gray,  159. 

Money  found,  after  the  death  of  a  testatrix,  in  a  secret  drawer  of  a 
chest  belonging  to  her,  does  not  pass  by  a  specific  bequest  of  the  chest, 
but  is  a  portion  of  the  residuum  of  the  personal  estate,  for  wliich  the 
executor  is  bound  to  account.     Smith  v.  Jewett,  3  Chandler  (N.  H.),  513. 

If  an  executor  receive  money  for  a  deed  of  real  estate  made  by  the 
testator,  but  not  delivered  until  after  his  death,  he  is  bound  to  account 
for  it.    Loring  v.  Cunningham,  9  Cush.  87. 

Salary  voted  to  a  person  after  his  decease,  and  paid  to  his  executor,  is 
assets  of  the  estate,  to  be  accounted  for  by  the  executor.     Ibid. 

The  amount  of  land  damages  paid  for  land  taken  for  a  railroad,  after 
the  death  of  the  intestate,  belongs  to  the  heirs  and  not  to  the  administra- 
tor; although  the  estate  is  insolvent,  and  the  whole  estate  is  afterwards 
sold  by  the  administrator,  under  license,  for  the  payment  of  debts. 
Boynton  v.  P.  &  S.  Railroad,  4  Cush.  467  ;  otherwise,  if  actually  takeu 
before  the  intestate's  death.     Moore  v.  Boston,  8  Cush.  274. 

If  the  testator  had  money  or  other  property  in  his  hands  belonging  to 
others,  whetiier  in  trust  or  otherwise,  and  it  has  no  ear-mark,  and  is  not 
distinguishable  from  the  mass  of  his  property,  the  party  owning  it  must 
come  in  as  a  general  creditor  of  the  estate,  and  the  property  is  assets,  to 
be  accounted  for  by  the  executor.  Trecothic  v.  Austin,  4  Mason,  29; 
Johnson  v.  Ames,  11  Pick.  181. 

1  Two  turkeys  belonging  to  the  intestate  wandered  away,  after  his 
death,  to  a  neighbor's  house,  and  there  remained  several  months,  when 
they  were  disposed  of  by  tiie  neighbor.  They  had  never  been  in  the 
administrator's  possession,  nor  had  he  ever  called  for  them.  lie  was 
ordered  to  charge  himself  with  their  value.  Tuttle  v.  Robinson,  33  N.  H. 
104. 


200      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

show  a  liability  to  pay  it  over  to  one  legally  claiming 
it.i 

When  an  executor  is  by  the  express  terms  of  the  will 
of  his  testator,  or  by  necessary  implication,  made  a  trus- 
tee of  any  part  of  the  estate,  he  will  be  required  to 
account  for  the  trust  fund  in  his  capacity  of  executor, 
unless  for  greater  convenience  and  with  the  assent  of 
the  probate  court  he  opens  a  new  account  as  trustee  ;  in 
which  event  he  must  give  a  ne-w  bond  as  trustee,  and 
transfer  to  his  account  as  trustee  the  property  to  be  held 
and  administered  by  him  in  that  character,  before  his 
liabilit}'  as  executor  will  terminate .^  If  he  continues  to 
hold  the  trust  fund  as  executor,  it  is  his  duty  to  separate 
it  from  the  mass  of  the  testator's  propert}',  and  invest  it 
in  some  secure  and  productive  stock,  or  at  interest  on 
good  security.  And  if  in  this  respect  he  acts  with 
strict  fidelity  and  due  diligence,  he  will  not  be  respon- 
sible should  any  loss  happen,  either  of  principal  or 
interest.^  But  the  mere  mental  determination  of  an  ex- 
ecutor to  appropriate  propert}''  to  himself  as  trustee, 
is  not  such  a  setting  apart  as  mil  cause  a  loss  or  depre- 
ciation of  the  trust  fund  to  fall  on  the  cestui  que  trust ; 
the  executor,  in  such  case,  must  account  for  the  entire 
trust  fund,  and  the  amount  due  from  him  must  be  stated 
by  making  annual  rests,  adding  the  interest  each  year  to 
the  principal.* 

If  an  administrator  appointed  in  this  State  collects 
funds  in  another  State  of  debtors  residing  there,  he  must 
account  for  them  here,  unless  he  has  taken  out  letters  of 
ancillary  administration  in  such  other  State  ;   in   that 

1  Jennison  v.  IIapj,'oocl,  10  Pick.  104.        2  Prior  v.  Talbot,  10  Cush.  1. 
8  Dorr  V.  Wainwriglit,  1.3  Pick.  332;  Brown  i;.  Kelsey,  2  Cush.  248; 
Hubbard  .;.  Lloyd,  6  Cush.  524. 

*  Miller  v.  Congdon,  14  Gray,  114. 


ACCOUNTS   OF    EXECUTORS,  ADMINISTRATORS,  ETC.      201 

case,  he  \Aill  be  held  to  account  here  only  for  the  sur- 
plus remaining  in  his  hands  upon  the  settlement  of  the 
ancillary  administration. ^  But  money  collected  there  of 
debtors  residing  here  must  be  accounted  for  here.^ 

An  ancillary  administrator  appointed  in  this  State 
must  account  to  the  court  by  wliich  he  was  so  appointed 
for  all  assets  received  by  him  under  his  ancillary 
appointment ;  but  not  for  assets  received  by  him  as 
principal  administrator  in  the  place  of  the  principal 
administration.^ 

When  chargeable  with  Interest.  An  executor  or 
administrator  is  not  chargeable  with  interest  on  the 
money  received  by  him  in  his  official  capacity  unless  he 
has  made  some  profitable  use  of  the  money,  or  has  been 
guilty  of  negligence  in  accounting  for  it.^  An  adminis- 
trator is  not  expected  to  invest  any  part  of  the  money 
belonging  to  the  estate  ;  nor  is  an  executor,  unless  he  is 
authorized  to  do  so  by  the  will  of  his  testator.  On  the 
contrary,  it  is  his  dut}'  to  collect  the  assets  and  pay  them 
over  to  the  persons  entitled  to  receive  them  as  speedily 
as  circumstances  will  allow.  But  if  he  has  invested  the 
money  and  received  interest  upon  it,  he  must  account 
for  it ;  and  the  fact  that  he  has  received  interest,  or  has 
made  use  of  the  money  in  his  own  business  may  be  in- 
ferred f]om  a  long  delay  in  settling  his  accounts,  or  his 
neglect  to  pay  over  balances  after  demand  made  upon 
him.^  But  if  the  delay  was  without  negligence  on  his 
part,  he  will  not  be  chargeable  wit;h  interest  unless  he  has 
made  profit  of  the  funds.^     He  is  not  to  be  charged  with 

•  Hooker  i;.  Oltustead,  6  Pick.  481 ;  Jennison  v.  Hapgood,  10  Pick.  77. 
••*  Ibid.  3  Fay  v.  Taylor,  3  Met.  109. 

♦  Wynian  v.  Hubbard,  13  Mass.  232;  Stearns  v.  Brown,  1  Pick.  630; 
Boynton  v.  Dyer,  18  Pick.  1. 

6  Wyman  v.  Ilubbiinl,  13  Mass.  232. 
6  Lamb  v.  Lamb,  11  Pick.  374. 


202      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

interest  in  any  case  from  the  date  of  his  appointment, 
or  of  his  receipt  of  the  money.  He  is  to  be  allowed  a 
reasonable  time  to  settle  the  estate,  and  the  time  proper 
to  be  allowed  for  that  purpose  must  depend  upon  the 
circumstances  of  each  case.  No  general  rule  would  do 
justice  iu  all  cases.^  When  the  administrator  employs 
the  funds  of  the  estate  in  his  own  business,  he  is  liable 
to  be  charged  with  compound  interest.^ 

Income  of  the  Real  E><tate.  The  administrator  has 
no  official  authority  to  collect  the  rents  of  real  estate 
belonging  to  the  estate  of  his  intestate  ;  nor  has  the 
executor,  unless  authorized  by  the  will  of  his  testator. 
The  real  estate  vests  in  the  heirs  or  devisees  immediately 
upon  the  death  of  the  owner,  and  all  rents  that  become 
due  subsequent  to  his  death  belong  to  them.  Even  if 
the  estate  is  insolvent,  they  are  entitled  to  the  rents  and 
profits  until  the  land  is  sold,  by  license  of  court,  for  the 
payment  of  debts.^  But  rents  collected  b}^  the  execu- 
tor or  administrator  to  be  applied,  by  agreement  with 
the  parties  interested,  to  the  payment  of  claims  agamst 
the  estate,  the]-eby  rendering  unnecessary  a  sale  of  the 
land,  are  personal  assets,  to  be  charged  against  the  ad- 
ministrator in  his  account.* 

1  See  Clarkson  v.  De  Peyster,  2  Wend.  77  ;  Schiffelin  v.  Stewart,  1 
Johns.  Ch.  (520;  Jennison  i;.  Hapgood,  10  Pick.  77. 

2  Boynton  v.  Dyer,  18  Pick.  1 ;  Itobbins  v.  Hayward,  1  Pick.  527 ; 
Schiffelin  v.  Stewart,  1  Johns.  Ch.  620. 

8  Gibson  r.  Farley,  16  Mass.  280;  Boynton  f.  P.  &  S.  Pailroad,4  Cush. 
469 ;  Pahner  v.  Palmer,  13  Gray,  326 ;  Kimball  i'.  Sumner,  62  Maine,  305. 

*  Stearns  v.  Stearns,  1  Pick.  159.  The  statute  provides  (Gen.  Sts.  c. 
98,  §  8),  that  "  if  the  real  estate  has  been  used  or  occupied  by  the  exec- 
utor or  administrator,  he  shall  account  for  the  income  thereof,  as  ordered 
by  the  probate  court  with  the  assent  of  the  executor  or  administrator  and 
of  such  otlier  parties  interested  as  are  present  at  the  rendering  of  the 
account.  If  the  parties  do  not  agree  on  the  sum  to  be  allowed,  it  shall 
be  determined  by  three  disinterested  persons,  to  be  appointed  hy  the  pro- 


ACCOUNTS   OF    EXECUTORS,  ADMINISTRATORS,  ETC.      203 

A  special  admioistrator,  when  authorized  by  the  pro- 
bate court  to  take  charge  of  the  real  estate  of  his  intes- 
tate, is  chargeable  with  the  rents  and  profits. 

Debts  due  from  the  Executor  or  Administrator.  If  the 
administrator  is  himself  a  debtor  to  the  estate,  the  debt 
owed  by  him  is  regarded  as  assets  of  the  estate,  to  be 
accounted  for  by  him.  He  must  charge  himself  with 
the  amount  of  the  debt,  as  if  he  had  received  it  of  any 
other  person  ;  ^  and  he  is  bound  to  answer  upon  oath  as 
to  all  facts  tending  to  show  that  he  was  indebted  to  the 
deceased,  even  as  to  facts  that  take  the  claim  out  of  the 
operation  of  the  statute  of  limitations,  though  it  may  be 
apparently  barred  by  that  statute.^ 

The  old  rule,  that  a  testator  by  making  a  debtor  his 
executor  thereby  releases  his  debt,  has  never  been  in 
force  in  this  State.  The  debt  is  assets  in  the  executor's 
hands  for  which  he  and  his  sureties  are  liable.^ 

bate  court,  whose  award  being  accepted  by  the  court  shall  be  final." 
This  provision  does  not  make  executors  and  administrators  officially  lia- 
ble for  rents  and  profits  that  come  to  their  hands,  but  was  designed  to 
facilitate  the  settlement  between  the  executor  and  the  devisees,  or  the 
administrator  and  the  heirs,  and  prevent  disputes  among  them.  New- 
comb  V.  Stebbins,  9  Met.  544 ;  Almy  v.  Crapo,  100  Mass.  218 ;  Choate  v. 
Arrington,  116  Mass.  552. 

1  Ipswich  Manufacturing  Co.  v.  Story,  5  Met.  310;  Winship  v.  Bass, 
12  Mass.  191);  Stevens  v.  Gaylord,  11  Mass.  2<j6.  Debts  due  to  the  estate 
of  a  testator  from  the  executor  named  in  liis  will,  and  from  a  firm  of  which 
lie  is  a  member,  are  to  be  accounted  for  as  assets ;  although  he  and  his 
firm  were  insolvent  at  tlie  time  when  he  accepted  the  trust,  and  although 
he  has  never  charged  them  in  his  account,  and  an  account  has  been 
allowed  in  wliich  they  were  not  included,  but  were  mentioned  as  notes 
which  it  had  been  impossible  to  collect,  and  although  he  has  resigned  his 
trust,  and  an  administrator  de  bonis  non  has  been  appointed  in  his  place. 
Leland  r.  Felton,  1  Alien,  531. 

2  Sigourney  v.  VVetherell,  6  Met.  553. 

»  Ipswich  Manuf.  Co.  i-.  Story,  6  Met.  313;  Winship  v.  Bass,  12  Mass. 
199;  Stevens  v.  Gaylord,  11  Mass.  267. 


204  PROCEEDINGS   IN   THE   PROBATE   COURTS. 

WHAT    IS    ALLOWED    TO    THE    EXECUTOR    OR 
ADMINISTRATOR. 

The  executor  or  administrator  of  a  solvent  estate  is 
allowed  to  credit  himself  in  his  account  with  all  sums 
paid  by  him  in  satisfaction  of  debts  due  from  the  de- 
ceased at  the  time  of  his  death. ^ 

The  estate  is  not  liable  for  money  paid  in  pui'suance 
of  a  promise,  the  consideration  of  which  arises  after  the 
death  of  the  testator  or  intestate.  Upon  such  a  prom- 
ise the  executor  or  administrator  is  personally  liable. 
Whether  the  amount  is  to  be  repaid  to  him  from  the 
estate  is  a  question  to  be  determined  by  the  probate 
court,  upon  the  settlement  of  his  account.^  It  would  be 
necessary  for  him  to  show,  in  support  of  his  application 
for  an  allowance  in  such  case,  that  the  payment  made 
by  him  was  beneficial  to  the  estate,  or  was  made  with 
the  assent  of  the  parties  interested. 

An  administrator  may  pay  assessments  upon  shares. 
in  banks  and  other  corporations  which  he  holds  as  part 
of  the  assets  of  the  estate,  and  will  be  allowed  in  his 
account  for  such  payments,  provided  the  assessments 
were  legally  laid  and  the  payments  were  necessary  to 
redeem  the  shares  from  a  lieu  created  by  the  assessment, 
and  were  beneficial  to  the  estate.  And  if  he  acted  in 
good  faith  he  would  undoubtedly  be  protected,  even  if 
the  shares  should  have  subsequently  fallen  in  value  in 
his  hands.^ 

1  An  administrator  is  not  allowed  for  personal  property  applied  by  liim 
to  rejiairs  and  improvements  of  tlie  real  estate,  though  so  aj)plied  in  ex- 
ecuting an  agreement  of  the  intestate.     Cobb  v.  Muzzey,  13  Gray,  57. 

2  Lnscomb  v.  Ballard,  5  Gray,  403. 

^  Ripl}^  V.  Sampson,  10  Pick.  373.  Taxes  paid  by  an  executor  on 
lands  in  another  State  where  he  had  not  taken  out  administration,  were 
not  allowed  in  his  account.     Jennison  v.  Hapgood,  10  Pick.  105. 


ACCOUNTS    OF    EXECUTORS,  ADMINISTRATORS,  ETC.      205 

The  executor  or  administrator  will  not  be  allowed  in 
his  account  for  debts  paid  by  him  after  they  had  become 
barred  by  the  statute  limiting  the  time  Ctwo  years) 
within  which  suits  can  be  brought  against  executors  and 
administrators  who  have  given  legal  notice  of  their  ap- 
pointment. The  executor's  promise  to  pay  a  claim  so 
barred  cannot  affect  the  estate.^ 

It  has  been  held  in  this  State  that  an  executor  or  ad- 
ministrator may  revive  by  a  new  promise  a  claim  barred 
by  the  general  statute  of  limitation,^  and  that  such  new 
promise  will  bind  the  estate  in  his  hands.^  He  cannot 
however  revive  a  claim  held  by  himself.*  There  seems 
to  be  no  good  reason  for  allowing  an  executor  or  admin- 
istrator for  payments  made  on  debts  barred  by  either 
statute  of  limitation. 

If  the  estate  has  been  represented  insolvent,  the  exec- 
utor is  not  allowed  in  his  first  account  for  the  payment 
of  debts,  he  having  no  authority  to  make  such  payments 
except  under  a  decree  of  distribution  issued  by  the 
court.^  He  credits  himself  only  with  the  expenses  of 
the  last  sickness  and  funeral  of  the  deceased,  charges  of 
administration,  the  loss,  if  any,  necessarily  sustained  by 
the  estate  in  his  hands,  and  with  the  amount  of  the  al- 
lowances, if  any,  made  by  the  court  to  the  widow  or 
minor  children  of  the  deceased.  The  balance  thus  ex- 
hibited remains  in  his  hands  until  he  is  ordered  by  the 
court  to  distribute  it  among  the  creditors. 

1  Brown  v.  Anderson,  13  Mass.  201;  Dawes  v.  Shed,  16  Mass.  6; 
Emerson  v.  Thompson,  16  Mass.  429. 

2  Foster  ;;.  Starkey,  12  Cush.  324. 

3  Manson  v.  Felton,  13  Pick.  206;  Emerson  v.  Thompson,  16  Mass. 
429. 

*  Richmond,  petitioner,  2  Pick.  567. 

5  He  is  not  allowed  for  sums  paid  on  debts  during  the  first  year  of  his 
administration,  though  paid  without  knowledge  that  the  estate  was  insol- 
vent.    Cobb  V.  Muzzey,  13  Gray,  57. 


206      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

Funeral  Charges  and  Expenses  of  the  last  Sickness. 
The  executor  or  administrator  is  allowed  in  his  account 
all  reasonable  sums  paid  for  funeral  expenses.  The 
amount  to  be  allowed  for  such  expenses  must  depend, 
in  some  degree,  upon  the  condition  of  the  estate.  If  the 
funeral  was  under  the  direction  of  the  family  of  the 
deceased,  and  the  estate  is  solvent,  the  sum  asked  for 
such  charges  is  usually  allowed  ;  but  no  extravagant 
expenses  will  be  allowed  as  against  the  creditors  of  an 
insolvent  estate.^  All  expenses  of  the  last  sickness  of 
the  deceased  paid  by  the  administrator  are  allowed  in 
his  account.^ 

Charges  of  Administration.  Executors  and  adminis- 
trators are  allowed  their  reasonable  expenses  incurred  in 
the  execution  of  their  respective  trusts,  and  such  com- 
pensation for  their  services  as  the  court  in  which  their 
accounts  are  settled  considers  just  and  reasonable.^ 

Under  the  head  of  expenses  of  administration  are  in- 
cluded all  sums  which  have  been  paid  by  the  executor 

1  In  McGlimsey's  case  (14  Serg.  &  llawle,  64),  the  supreme  court 
allowed  $358.75  for  funeral  expenses,  includinp;  a  vault  and  tombstone. 
It  was  observed  by  the  court :  "  The  deceased  had  a  good  estate  and  no 
children;  and  the  widow,  who  was  entitled  to  one  lialf,  wished  to  be  lib- 
eral in  honor  of  his  memory.  A  handsome  tombstone  was  erected  over 
the  vault  in  which  the  body  was  interred,  and  this  was  the  principal  arti- 
cle of  expense.  But  there  was  one  article  which  shotdd  be  rejected.  I 
allude  to  a  picture  of  the  deceased,  painted  after  liis  death.  If  the  widow 
desired  a  memorial  of  this  kind  she  should  pay  for  it  herself." 

A  demand  for  mourning,  furnished  to  the  widow  and  family  of  the 
deceased,  is  not  a  funeral  expense.  Johnson  v.  Baker,  2  Carr.  &  Pajme, 
207.  But  see  Wood's  estate  (1  Ashmead),  and  Flintham's  appeal  (11 
Serg.  &  R.  16). 

2  A  testator  at  a  distance  from  home  during  his  last  sickness,  sent  for 
his  wife  and  heirs,  but  died  before  they  arrived.  The  executor  was  al- 
lowed to  charge  in  his  account  their  expenses  which  he  had  paid  to  them. 
Jennison  v.  Hapgood,  10  Pick.  88. 

3  Gen.  Sts.  c.  98,  §  10.     Edwards  v.  Ela,  6  Allen,  87. 


ACCOUNTS    OF    EXECUTORS,  ADMINISTRATORS,  ETC.       207 

in  the  course  of  a  faithful  and  prudent  administration  ; 
such  as  the  expense  of  appraising  the  estate,  of  collect- 
ing the  effects  and  paying  the  debts,  of  attending  the 
probate  and  other  courts  upon  business  of  the  estate,  of 
advertising  as  required  by  law  or  any  order  of  the  court, 
and  sums  paid  for  legal  and  other  necessary  assistance.^ 
The  expenses  of  assigning  dower,  or  making  partition 
of  land  among  the  heirs  or  devisees,  are  not  charges  of 
administration,  and  are  not  allowed  in  the  administra- 
tion account. 

As  a  general  rule,  the  executor  or  administrator  is  not 
allowed  interest  on  money  advanced  by  him  for  the  pay- 
ment of  debts  due  from  the  estate.  It  is  no  part  of  his 
duty  to  advance  his  own  funds  for  that  purpose  ;  ^  but 
if,  not  having  assets  of  the  estate  in  his  hands,  he  ad- 
vances his  own  money  to  redeem  land  of  the  deceased, 
mortgaged  for  less  than  its  value,  he  is  entitled  to  in- 
terest on  the  money  advanced.^ 

If  judgment  is  rendered  against  an  executor  or  admin- 
istrator for  costs  in  a  suit  commenced  or  prosecuted  by 
him  in  that  capacity,  the  estate  in  his  hands^ cannot  be 
taken  in  execution  therefor,  but  execution  is  awarded 
against  him  as  for  his  own  debt ;  and  the  amount  paid 
by  him  thereupon  is  allowed  in  his  administration  ac- 

1  Administrator's  charges  for  attending  probate  court  at  hearings  in 
relation  to  estates  connected  with  that  of  his  intestate,  for  inquiring  and 
ascertaining  the  existence  of  property  in  another  jurisdiction  supposed 
to  belong  to  the  estate,  and  for  taking  legal  advice  in  respect  to  such 
property,  although  it  could  be  administered  only  in  the  other  jurisdiction, 
allowed.     Wendell  v.  French,  19  N.  H.  205. 

The  acts  of  the  administrator  done  in  good  faith  and  at  the  request  of 
all  the  parties  interested,  will  be  protected  in  the  settlement  of  his  ac- 
counts, even  if  he  has  not  administered  strictly  according  to  law.  Poole  v. 
Munday,  103  Mass.  174. 

2  Storer  r.  Storer,  [)  Mass.  37. 

*  Jennison  v.  Hapgood,  10  Pick.  102. 


208  PROCEEDINGS   IN   THE   PROBATE    COURTS. 

count,  unless  it  appears  to  the  probate  court  that  the 
suit  was  commenced  or  prosecuted  unnecessarily  or  with- 
out reasonable  cause. ^  But  such  costs  are  not  allowed 
in  the  administration  account,  until  they  have  been 
actuall}-  paid  by  him.  Their  payment  is  a  condition 
precedent  to  their  allowance.^ 

Since  the  repeal  of  the  statute  allowing  to  executors 
and  administrators  a  commission  on  the  sums  accounted 
for  by  them,  there  has  been  no  rule  common  to  all  the 
probate  courts  in  this  State  in  regard  to  their  compen- 
sation. The  executor  or  administrator  usually  credits 
himself  in  his  account  with  such  a  sum  as  he  considers 
himself  entitled  to  receive,  and  the  court,  in  its  discre- 
tion, allows  the  sum  asked  for,  or  a  less  sum,  regard 
being  had  to  the  character  of  the  services  rendered 
necessary  by  the  condition  of  the  estate,  and  actually 
performed. 

An  executor  is  sometimes  entitled  to  credits  in  his 
account  that  he  could  not  claim  as  administrator  of  an 
intestate  estate.  It  being  his  duty  to  administer  accord- 
ing to  law  and  the  will  of  his  testator,  he  may  be  called 
upon,  in  order  to  carry  out  the  provisions  of  the  will, 
to  perform  services  and  incur  expenses  that  would  be 
irregular  and  unnecessary  in  a  case  of  ordinary  ad- 
ministration. For  all  such  services  faithfully  performed 
and  expenses  properly  incurred  he  is  entitled  to  be 
allowed.^ 

1  Gen.  Sts.  c.  98,  §  13 ;  Hardy  v.  Call,  16  Mass.  530. 

2  Thaclier  v.  Dunham,  5  Gray,  26. 

8  Unfaithful  administration  will  not  deprive  an  executor  of  his  right 
to  compensation  for  his  services  so  far  as  they  have  been  beneficial  to 
the  estate.     Jennison  v.  Hap^ood,  10  Pick.  112. 

When  services  not  obviously  alien  to  the  administration  have  been 
rendered  at  the  special  request  and  advice  of  a  party  interested  in  the 
estate,  he  is  estopped  from  objecting  to  the  allowance  of  a  just  compensa- 


ACCOUNTS    OF    EXECUTORS,  ADMINISTRATORS,  ETC.      209 

Loss  on  Sale  of  the  Personal  Estate.  The  executor 
or  administrator  is  not  required  to  sustain  any  personal 
loss  in  consequence  of  the  decrease  or  destruction,  with- 
out his  fault,  of  any  part  of  the  estate.  If  he  has  sold 
it  for  less  than  the  appraised  value,  he  will  be  allowed 
in  his  account  for  the  loss,  if  it  appears  that  the  sale  was 
expedient  and  for  the  interest  of  all  concerned  in  the 
estate  ;^  and  he  is  entitled  to  be  allowed  for  the  amount 
of  any  debts  inventoried  as  due  to  the  deceased,  if  it 
appears  to  the  court  that  they  remain  uncollected  with- 
out his  fault.2 

Allowances  to  the  Widow  and  Minor  Children.  The 
executor  or  administrator  is  allowed  in  his  account  for 
all  sums  paid  by  him,  under  order  of  the  probate 
court,  as  allowances  to  the  widow  or  minor  children  of 
the  deceased  ;  but,  if  he  pays  money  for  their  support 
without  being  first  authorized  by  the  court,  he  makes 
the  payment  at  his  own  lisk.^ 

Debts  due  the  Executor  or  Administrator  from  the 
deceased.  If  the  executor  or  administrator  is  himself  a 
creditor  of  the  estate,  he  should  procure  the  assent  of 
the  heirs,  or  other  parties  interested  in  the  estate,  to  the 

tion  for  them  in  the  settlement  of  the  administrator's  account.  "Wendell 
i;.  French,  19  N.  H.  205. 

Upon  a  controversy  between  the  administrator  and  the  heirs,  charges 
by  him  of  time  and  money  expended  while  endeavoring  to  effect  a  private 
settlement  with  them,  "are  not  proper  items  of  charge  against  the  estate 
as  expenses  of  administration.     Clark  v.  Clay,  11  Foster  (N.  H.),  3'J3. 

Where  an  executor,  to  whom  real  estate  is  devised  in  trust,  is  author- 
ized by  the  will  to  take  down  any  part  of  the  testator's  buildings,  and  to 
rebuild,  to  erect  additional  buildings,  and  to  hire  money  for  the  purpose 
of  bettering  the  trust  estate,  he  m.iy  advance  his  own  money  for  the  like 
purposes,  and  charge  it  in  his  general  administration  account.  Watts  v. 
Howard,  7  Met.  478.     And  see  Wiggin  v.  Sweet,  6  Met.  194. 

1  Gen.  Sts.  c.  98,  §  2.  -J  Ibid.  §  6. 

3  Washburn  v.  Hale,  10  Pick.  429 ;  Brewster  v.  Brewster,  8  Mass.  131. 

14 


210      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

allowance  of  his  claim,  before  he  presents  his  account  to 
the  probate  court.  If  his  claim  is  disputed  by  any  per- 
son interested  in  the  estate,  he  must  file  in  the  probate 
court  a  separate  statement,  setting  forth  distinctly  and 
fully  the  nature  and  grounds  of  his  claim  ;  and  it  may 
then  be  submitted  under  an  order  of  the  court  to  one  or 
more  arbitrators,  to  be  agreed  on  hy  the  claimant  and 
the  party  objecting.  The  court  has  like  power  to  dis- 
chaige  the  rule  by  which  the  claim  is  referred,  and  to 
reject  and  disallow  the  award,  or  to  recommit  it  to  the 
arbitrators,  as  may  be  exercised  by  the  common-law 
courts  with  regard  to  cases  referred  by  a  rule  of  those 
courts.  The  award  of  the  arbitrators,  if  accepted  by 
the  probate  court,  is  final  and  conclusive. 

If  the  parties  do  not  agree  in  the  appointment  of  ar- 
bitrators, or  if  the  award  is  not  confirmed  by  the  probate 
court,  the  judge  will  decide  on  the  claim  ;  and  if  either 
party  appeals  from  his  decision  to  the  supreme  court  of 
probate,  either  party  or  the  court  may  have  the  claim 
submitted  to  a  jury.^ 

If  the  claim  of  the  executor  or  administrator  results 
from  a  course  of  dealing,  or  involves  mutual  debts  and 
credits,  the  balance  only  is  the  actual  debt,  and  the 
whole  account  on  both  sides  must  be  examined,  in  order 
to  ascertain  that  balance  ;  and,  of  course,  all  the  items 
on  both  sides  are  put  in  issue.^ 

The  executor  or  administrator  is  entitled  to  interest 
on  his  claim  only  for  such  a  length  of  time,  after  taking 
administration,  as  is  reasonably  needed  for  the  settle- 
ment of  the  estate.^ 

Distributive  payments  by  an  executor  to  residuary 
lesratees  are  not  allowed  in  his  account  rendered  to  the 

1  Gen.  Sts.  c.  97,  §§  26,  27.  2  Willey  v.  Thompson,  9  Met.  329. 

8  Richmond,  petitioner,  2  Pick.  567. 


ACCOUNTS    OF    EXECUTORS,   ADMINISTRATORS,  ETC.       211 

probate  court.  The  settlement  of  the  account  deter- 
mines the  amount  of  residue  subject  to  distribution,  but 
not  the  rights  or  shares  of  those  who  are  entitled.^ 

It  may  be  necessary  for  the  executor  or  administrator 
to  render  more  than  one  account  of  his  administration 
of  the  estate  committed  to  him.  He  is  required  to  ren- 
der an  account  within  one  year  after  giving  bond,  and 
from  time  to  time,  as  the  condition  of  the  estate  may 
demand  or  the  pro"bate  court  may  order,  until  the  estate 
is  fully  settled.  If  he  receives  assets,  though  they  come 
to  his  hands  more  than  twenty  years  after  the  supposed 
final  settlement  and  distribution  of  the  estate,  he  is 
bound  to  account  for  them.^  In  stating  any  account 
after  the  first,  he  brings  forward  the  balance  of  his  last 
preceding  account,  and  charges  himself  Avith  the  amount 
of  all  sums  received  by  him  not  previously  accounted 
for  :  and  asks  to  be  allowed  for  the  amount  of  any 
additional  pajanents  made  by  him  and  expenses  of  ad- 
ministration. And  he  must  annex  schedules  giving  full 
details  of  such  receipts  and  expenditures. 

FORM   OF   guardian's   AND    TRUSTEE'S    ACCOUNTS. 

The  guardian  or  trustee  presents  his  account  in  sub- 
stantially tlie  same  form  as  that  of  an  executor  or 
administrator.  He  charges  himself  with  tlie  amount  of 
the  assets  received  by  him,  and  asks  to  be  allowed  for 
the  payments  made  by  him  and  the  charges  of  the  trust. 
With  the  account  must  be  filed  a  schedule  stating  the 
several  sums  received  by  him,  the  person  of  whom,  and 
the  time  when,  each  sum  was  received  ;  a  second  sched- 
ule containing  a  full  statement  of  the   payments  and 

1  Granger  v.  Bassett,  98  Mass.  462. 

2  Wliite  V.  Swain,  3  Pick.  365. 


212      PROCEEDINGS  IX  THE  PROBATE  COURTS. 

charges  ;  and  a  third  stating  particularly  the  manner  in 
which  any  balance  remaining  in  his  hands  is  invested. 

WITH   WHAT   THE   GUARDIAN   OR   TRUSTEE  IS 
CHARGEABLE. 

The  guardian  or  trustee  is  required  to  charge  himself 
with  the  value  of  the  personal  estate  in  his  hands,  ac- 
cording to  the  inventory  ;  with  the  gain,  if  any,  realized 
from  its  sale ;  with  the  rents  and  profits  of  the  real 
estate  belonging  to  the  ward,  or  cestui  que  trust ;  and 
with  all  sums  received  by  him  in  his  official  capacity, 
from  whatever  source. 

He  is  held  strictly  to  account  for  the  interest  arising 
from  the  trust  fund.  The  general  rule  is  that  he  is 
bound  to  take  the  same  care  of  the  trust  fund  as  a  dis- 
creet and  prudent  man  would  take  of  his  own  property ; 
to  manage  it  for  the  exclusive  benefit  of  tlie  ward  or 
cestui  que  trusty  and  to  make  no  profit  or  advantage  out 
of  it  for  himself ;  to  keep  it  at  all  times,  when  practicable, 
profitably  invested,  and  punctually  to  account  for  the 
income  as  well  as  the  principal.  If  any  of  these  duties 
are  neglected,  the  loss  resulting  from  the  neglect  must 
fall  upon  him,  and  not  on  the  ward,  or  cestui  que  trust. 
Hence,  if  through  gross  carelessness  or  ignorance  he 
makes  a  bad  investment,  and  thereby  loses  the  whole  or 
part  of  the  trust  fund,  he  will  be  held  to  replace  it,  and 
must  charge  himself  with  it  in  his  account. ^  But  he  is 
not  liable  for  losses  occasioned  by  bad  investments,  pro- 
vided he  acts  in  good  faith,  and  with  sound  discretion.^ 

»  Harding  v.  Larned,  4  Allen,  426;  Clark  v.  Garfield,  8  Alien,  427; 
Richardson  v.  Boynton,  12  Allen,  138. 

2  A  loan  by  a  guardian,  upon  the  promissory  note  of  the  borrower, 
payable  in  one  year  with  interest,  secured  by  a  pledge  of  shares  in  a  man- 


ACCOUNTS  OF  EXECUTORS,  ADMINISTRATORS,  ETC.   213 

If  he  wholly  neglects  to  invest  the  trust  funds,  he  is 
chargeable  with  the  income  that  would  have  been  de- 
rived from  a  proper  investment ;  and  in  cases  of  gross 
neglect,  or  if  he  employs  the  money  in  his  own  business, 
he  is  liable  to  be  charged  with  compound  interest.^  He 
may  not  be  chargeable  with  interest  from  the  date  of  his 
appointment,  or  of  his  receipt  of  the  money.  He  is 
entitled  to  a  reasonable  time  in  which  to  make  the  in- 
vestment, and  the  length  of  time  that  will  be  deemed 
reasonable  for  that  purpose  must  depend  upon  the  con- 
dition of  the  property  at  the  time  he  received  it,  his 
opportunity  of  making  investments,  or  other  circum- 
stances controlling  his  proceedings.^ 

ufacturing  corporation,  the  amount  of  the  loan  being  about  three  quarters 
of  the  par  value  of  the  shares,  and  less  than  three  quarters  of  their  mar- 
ket-value, was  held  to  be  an  investment  made  with  sound  discretion  ;  and 
altiiough  the  borrower  failed  before  the  note  became  due,  and  the  shares 
fell  in  value  below  the  amount  of  the  note,  the  guardian  was  held  not  to 
be  responsible  for  the  loss. 

And  the  guardian  having  sold  the  shares  and  taken  the  purchaser's 
note  for  the  price,  with  two  indorsers,  and  the  notes  of  another  person 
secured  by  a  mortgage  on  land,  he  was  held  to  have  exercised  a  sound 
discretion,  and  not  to  be  responsible  for  a  loss  occasioned  by  the  failure 
of  all  the  parties  to  the  notes,  and  a  fall  in  the  value  of  the  mortgaged 
premises.  Lovell  v.  Minut,  20  Pick.  116.  And  see  Harvard  College  v. 
Amor3%  'J  Pick.  459  ;  Thompson  v.  Brown,  4  Johns.  Ch.  628. 

1  Boynton  v.  Dyer,  18  Tick.  1.  Where  the  guardian  had  received 
rents  and  income  from  stocks,  and  had  rendered  no  account  for  many 
years,  it  was  ordered  that  an  account  should  be  settled  with  a  rest  for 
every  year,  and  the  balance  thus  struck  carried  forward,  to  be  again  on 
interest  whenever  the  sum  should  be  so  large  that  a  trustee  acting  faith- 
fully and  discreetly  would  have  put  it  in  a  productive  state ;  and  S500 
was  held  to  be  such  a  sum.     Robbins  v.  Hay  ward,  1  Pick.  528,  note. 

Simple  interest  only  was  allowed  on  a  note  due  on  demand  from  the 
guardian  to  the  ward,  the  note  being  so  small  that  it  was  not  a  suHlcicnt  ob- 
ject to  make  anew  investment  with  the  interest.    Fay  v.  Howe,  1  Pick.  527. 

2  In  Boynton  v.  Dyer  (18  Pick.  1),  one  year  was  deemed  a  reasonable 
time.  In  Clarkson  v.  Depeystcr  (2  Wend.  77),  six  months  was  held  suf- 
ficient; and  in  Sciiieflelin  v.  Stewart  (1  Johns.  Ch.  020),  two  years  were 
alhjwed. 


214      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

If  tlie  guuidian  is  also  executor  of  the  will  in  which 
a  legacy  is  given  to  his  ward,  he  cannot  charge  himself 
in  his  guardianship  account  with  the  amount  of  the 
legacy  until,  by  the  terms  of  the  will,  it  becomes  pay- 
able ;  until  that  time  he  must  account  for  it  as  executor. 
This  distinction,  while  it  does  not  affect  his  personal 
liability,  may  be  of  importance  to  his  sureties.^ 

WHAT   IS    ALLOWED    TO   THE   GUARDIAN    OR    TRUSTEE. 

The  guardian  is  allowed  to  credit  himself  with  all 
sums  properly  paid  by  him  for  the  support  and  education 
of  his  ward.  He  ma}'^  expend  a  part  or  the  whole  of  the 
income  of  the  ward's  estate  for  these  purposes,  as  oc- 
casion requires,  and  if  the  income  is  not  sufficient,  the 
principal ;  but  such  expenses  must  be  consistent  with  a 
prudent  management  of  the  estate.  If  the  ward  is  a 
minor,  and  has  a  father  living,  the  expense  of  his  main- 
tenance and  education  is  to  be  paid  by  the  father,  unless 
the  ward's  property  is  sufficient  to  support  him  in  a 
manner  more  expensive  than  his  father  can  reasonably 
afford  ;  in  which  case  the  expense  of  the  maintenance 
and  education  of  the  minor  may  be  defrayed  out  of  his 
own  property,  in  whole  or  in  part,  as  the  probate  court 
deems  reasonable.^     If  the  ward  is  a  married  woman, 

1  Livermore  v.  Remis,  2  Allen,  394. 

2  Gen.  Sts.  c.  109,  §  2L  Strong  v.  Moe,  8  Allen,  125.  A  husband 
who  receives  into  his  family  the  children  of  his  wife  by  a  former  mar- 
riage stands  to  them  ;'«  loco  parentis,  and,  in  the  absence  of  express  contract 
or  of  circumstances  sliowing  a  different  arrangement,  has  a  right  to  their 
services,  and  is  liable  for  their  support  and  education.  And  where,  for 
seven  years,  he  has  lived  in  a  house  belonging  to  his  wife  and  her  three 
children  by  a  former  marriage,  has  been  appointed  guardian  of  the  cliil- 
dren,  and  kept  them  in  the  house  with  liimself  and  their  mother,  has  no 
property  of  his  own,  lias  only  earned  enough  during  the  time  to  support 
the  united  family,  and  has  sold  the  real  estate  of  his  wards  by  leave  of 


ACCOUNTS   OF   EXECUTORS,  ADMINISTRATORS,  ETC.      215 

the  guardian  cannot  expend  her  estate  for  her  support, 
unless  authorized  by  the  court,  on  account  of  the  inabil- 
ity of  the  husband  suitably  to  maintain  her  and  her 
family,  or  for  other  cause  which  the  court  deems  rea- 
sonable.^ 

In  all  cases,  the  amounts  to  be  allowed  to  the  guardian 
in  his  account  for  his  ward's  expenses  will  be  determined 
with  reference  to  the  condition  and  circumstances  of  the 
ward.2 

If  the  guardian  has  advanced  his  own  money  for  the 
payment  of  debts  and  expenses  of  his  ward,  under  cir- 
cumstances that  render  that  course  of  proceeding  proper, 
he  is  entitled  to  interest  on  the  money  so  advanced.^ 

Guardians  and  trustees  are  allowed  for  all  necessary 
expenses  incurred  in  the  execution  of  their  respective 
trusts,  and  such  compensation  for  their  services  as  the 
court  may  consider  just  and  reasonable.* 

court,  is  not  to  be  cliarged  in  his  account  with  any  previous  rent  thereof, 
or  credited  with  taxes  paid  thereon,  or  I'or  tlie  board  and  clothing  of  his 
wards,  but  may  be  allowed  a  reasonable  amount  paid  for  the  expense  of 
one  of  Ids  wards  at  a  boarding-school.  Mulhern  v.  McDavitt,  16  Gray, 
404.     See  Wilkes  v.  Rogers,  6  Johns.  566. 

1  Gen.  Sts.  c.  108,  §  18. 

2  The  guardian  (of  an  insane  person)  is  appointed  for  the  welfare, 
comfort,  and  security  of  the  ward  ;  and  not  for  tlie  increase  of  the  estate 
in  his  hands  by  accumulations  from  the  income,  in  order  to  enlarge  the 
wealth  of  remote  or  collateral  relatives  who  may  ultimately  succeed  to 
the  inlieritance.  It  is  no  part  of  his  duty  to  diminish  the  reasonable 
comforts  of  liis  ward,  or  to  prevent  him  from  enjoying  such  luxuries,  or 
indulging  such  tastes,  as  would  be  allowable  and  proper  in  the  case  of  a 
man  similarly  situated  in  other  respects,  but  in  the  full  possession  of  his 
faculties.     Ames,  J.,  in  May  v.  May,  lO'J  Mass.  256. 

3  Ilayward  v.  Ellis,  13  Pick.  272. 

*  Keasonable  exjjenses  incurred  by  the  guardian  of  an  insane  person, 
in  resisting  tlie  application  for  a  revocation  of  the  guardianship  on  the 
ground  of  his  restoration  to  sanity,  when  it  admits  of  any  reasonable 
doubt,  and  the  guardian  appears  to  have  incurred  the  expenses  in  good 
faith,  for  the  purpose  of  a  proper  inquiry  into  the  ward's  condition,  are 


216      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

If  the  same  person  is  guardian  of  two  or  more  wards, 
although  they  ma}'  he  equally  interested  in  tlie  property 
in  his  hands,  he  should  render  a  separate  account  of  his 
guardianship  of  each,  and  is  hound  to  account  whenever 
either  of  them  arrives  at  full  agfe. 

ALLOWANCE   OF   PBOBATE   ACCOUNTS. 

The  administrator  or  other  party  accounting  will 
avoid  some  delay  and  expense  if,  hefore  presenting  his 
account  to  the  probate  court,  he  submits  it  to  the  heirs, 
or  other  parties  interested,  and  obtains  their  assent  in 
writing  to  its  allowance.  Such  assent  may  he  conven- 
iently indorsed  on  the  account.  If  they  do  not  so  ex- 
press their  assent,  the  court,  before  proceeding  to  pass 
upon  the  account,  will  order  such  notice  to  be  given  to 
them  as  the  circumstances  of  the  case  require.  Guar- 
dianship accounts,  rendered  before  the  ward  becomes  of 
age,  are  not  allowed,  unless  the  next  of  kin  assent  thereto, 
or  are  cited,  and  a  guardian  ad  litem  is  also  appointed, 
who  examines  the  account  and  the  vouchers ;  nor  after 
the  ward  becomes  of  age,  unless  he  assents  thereto  or  is 
cited. 

Any  person  interested  in  the  estate  may  appear  and 
object  to  the  allowance  of  the  account,  either  that  the 

to  be  allowed  the  guardian  in  his  account.    Palmer  v.  Palmer,  1  Chandler 
(N.  H.),  418. 

A  trustee  or  guardian  is  not  allowed  in  his  account  for  the  expenses 
of  a  controversy  occasioned  in  a  great  measure  by  his  own  fault.  A 
guardian  who  is  also  trustee  is  not  allowed  full  compensation  in  each 
capacity  for  the  same  service.  Blake  y.  Pegram,  101  Mass.  502.  A  guar- 
dian is  not  allowed  compensation  for  changing  investments  of  his  ward's 
property  in  the  form  of  commissions  on  the  amounts  invested.  May  v. 
May,  109  Mass.  252.  He  is  not  allowed  compensation  for  taking  care  of 
a  trust  fund  while  he  himself  is  the  borrower  of  it.  Farwell  v.  Steen, 
46  Vt.  678. 


ACCOUNTS    OF    EXECUTORS,  ADMINISTRATORS,  ETC.      217 

administrator  or  other  trustee  has  not  charged  himself 
with  all  the  assets  that  have  come  to  his  hands,  or  that  he 
has  credited  himself  with  sums  that  ought  not  to  have 
been  paid  from  the  estate,  or  that  he  claims  a  larger 
sum  for  compensation  than  he  is  justly  entitled  to  re- 
ceive, or  because  of  any  overcharge  or  omission  in  his 
account.  The  executor  or  guardian  is  not  only  required 
to  make  oath  to  the  correctness  of  his  account,  but  to 
answer  specifically  all  questions  concerning  it.^  And 
the  party  at  whose  instance  interrogatories  have  been 
proposed  to  him  touching  his  account,  has  a  right  to 
offer  evidence  to  disprove  his  answers.^ 

The  court,  upon  the  hearing,  may  order  the  account- 
ant to  charge  himself  with  sums  not  included  in  his 
account,  if  it  appears  that  he  has  received  them  in  his 
official  capacity,  and  may  disallow  any  of  the  items  with 
which  he  credits  himself ;  and  the  decree  of  the  court 
allowing  the  account,  as  it  may  be  finally  adjusted,  is 
conclusive,  unless  appealed  from.  The  supreme  court 
will  not,  as  a  court  of  chancery,  resettle  an  administra- 
tion account  alleged  to  have  been  fraudulently  settled 
in  the  probate  court ;  ^  nor  can  the  decree  of  the  probate 
court,  duly  allowing  the  final  account  of  an  administra- 
tor, be  impeached  in  an  action  at  law  against  him  upon 
a  claim  against  the  deceased.*  The  person  aggrieved 
by  the  decree  can  take  his  objections  to  the  supreme 
court  of  probate  only  by  appeal.  If  the  proceedings  in 
the  probate  court  were  such  that  they  may  be  treated  as 
a  nullity  on  account  of  fraud,  the  administrator  may  be 
cited  to  account  anew. 

1  Gen.  Sts.  c.  98,  §  9;  Sigourney  v.  Wetherell,  6, Met.  553;  Wade  u. 
Lobdell,  4  Cash.  610. 

2  Ili^hee  v.  Bacon,  8  Pick.  484. 

«  Jenni.son  v.  Hapgood,  7  Pick.  1  ;  Sever  v.  Russell,  4  Cush.  513. 
*  Parclier  v.  Busseil,  11  Cusli.  107. 


218      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

The  accounts  of  two  or  more  joint  executors,  admin- 
istrators, guardians,  or  trustees,  may  be  allowed  by  the 
probate  court  upon  the  oath  of  one  of  them.^  The 
oath  may  be  administered  by  the  judge  or  register  in  or 
out  of  court,  or  by  a  justice  of  the  peace  ;  but  the  judge 
may  require  the  oath  to  be  taken  before  him  in  open 
court.2 

WHEN    SETTLED   ACCOUNTS   MAY   BE   OPENED. 

"  When  an  account  is  settled  in  the  absence  of  any 
person  adversely  interested,  and  without  notice  to  him, 
the  account  may  be  opened,  on  his  application  at  any 
time  within  six  months  thereafter  ;  and  upon  the  settle- 
ment of  any  account  by  an  executor  or  administrator 
(or  trustee),  all  his  former  accounts  may  be  so  far  opened 
as  to  correct  any  mistake  or  error  therein  ;  ^  except  that 
any  matter  in  dispute  between  two  parties,  which  had 
been  previously  heard  and  determined  by  the  court, 
shall  not  again  be  brought  in  question  by  either  of  the 
same  parties  without  leave  of  the  court."  * 

To  avail  himself  of  the  exception  provided  by  the 
above  section,  the  administrator  should  take  care  that 
any  matter  heard  and  determined  should  be  so  stated  as 
to  appear  in  the  decree  of  the  court  allowing  his  account. 
If  his  account  is  disputed,  lie  should  call  upon  the  party 
objecting  to  specify  in  writing  the  items  to  which  he  ob- 
jects. His  account  being  then  settled,  the  entire  pro- 
ceedings will  appear  upon  the  records  of  the  court,  and 

1  Gen.  Sts.  c.  101,  §  6.  2  gtat.  1871,  c.  122. 

3  Wiggin  V.  Sweet,  6  Met.  194. 

*  Gen.  Sts.  c.  98,  §  12 ;  Stat.  1870,  c.  366 ;  Granger  v.  Bassett,  98  Mass. 
462;  Blake  v.  Pegram,  101  Mass.  592.  Upon  the  settlement  of  an  account 
by  a  trustee  or  guardian,  a  former  account  may  be  opened,  although  an 
appeal  was  taken  from  its  allowance  in  the  probate  court,  and  determined 
in  the  supreme  court  of  probate.     Blake  v.  Pegram,  109  Mass.  541. 


ACCOUNTS    OP   EXECUTORS,  ADMINISTEATORS,  ETC.      219 

no  doubt  can  afterwards  arise  as  to  the  particular  items 
disputed  and  determined.  Even  then,  by  leave  of  the 
court,  the  account  may  be  opened,  though  undoubtedly 
the  court  would  be  cautious  in  exercising  such  a  power 
in  regard  to  a  subject  once  controverted  and  once 
judicially  settled.^ 

Where  an  account  has  been  settled  for  many  j^ears, 
the  heirs  or  other  parties  concerned  acquiescing  in  the 
settlement,  it  will  not  be  opened  on  their  application 
unless  good  cause  is  shown  for  the  delay,  but  the  admin- 
istrator or  other  trust  officer  may  be  cited  at  any  time 
to  account  for  assets  not  included  in  his  settled  ac- 
counts.2 

1  Field  V.  Hitchcock,  14  Pick.  405 ;  Smith  v.  Button,  4  Shepley,  308. 

2  An  administrator  settled  his  first  account  in  1818,  and  a  second  ac- 
count in  1822;  but  in  1825,  on  the  petition  of  the  residuary  legatee,  a 
rehearing  was  had  in  the  probate  court,  and  the  administrator  was  ordered 
to  credit  the  estate  with  an  additional  sum.  From  this  decree  the  legatee 
appealed,  on  the  ground  that  a  larger  sum  should  be  credited,  but  iailed 
to  prosecute  the  appeal,  and  it  was  dismissed.  The  legatee  thereupon 
demanded  payment  of  the  administrator  of  the  sum  so  ordered  to  be 
credited,  and  upon  his  refusal  to  pay  brought  an  action  against  him,  in 
which  judgment  was  rendered,  in  1835,  in  favor  of  the  administrator,  on 
the  ground  that  the  decree  had  been  vacated  by  the  appeal.  In  1836,  the 
legatee  filed  a  petition  in  the  probate  court  for  a  second  rehearing,  on 
the  ground  that  the  account  had  been  settled  fraudulently,  but  the  peti- 
tion was  dismissed  by  that  court  in  1837  ;  on  appeal,  it  was  ordered  that 
unless  the  respondent  should  pay  to  the  legatee  the  amount  he  had  been 
ordered  to  credit  the  estate  in  1825,  with  interest  from  the  time  of  the 
demand  and  costs,  the  prayer  of  the  petition  should  be  granted.  Davis 
V.  Cowden,  20  Pick.  510.     See  Sever  v.  Russell,  4  Gush.  518. 


CHAPTER  XVI. 

DESCENT   AND   DISTRIBUTION  —  ADVANCEMENTS. 

Descent,  or  hereditary  succession,  is  the  title  whereby 
a  person,  on  the  death  of  his  ancestor,  acquires  his  estate 
by  right  of  representation,  as  his  heir. 

DESCENT    OF   REAL   ESTATE. 

Chapter  two  hundred  and  twenty  of  the  acts  of  1876, 
which  prescribes  the  rules  regulating  the  descent  of  in- 
testate estates,  provides :  — 

"  Sect.  1.  When  a  person  dies  seised  of  land,  tene- 
ments, or  hereditaments,  or  of  any  right  thereto,  or 
entitled  to  any  interest  therein,  in  fee-simple  or  for  the 
life  of  another,^  not  having  lawfully  devised  the  same, 

1  This  description  of  the  real  estate  is  so  framed  as  to  include  not  only 
lands  of  which  tlie  ancestor  was  actually  seised,  but  also  remainders  and 
reversions,  and  the  right  to  lands  of  which  he  had  been  disseised,  or  in 
any  other  way  ousted.     Com.  Kep.  1834,  note  to  c.  61. 

Contingent  interests,  botii  in  real  and  personal  estate,  are  transmissible 
like  vested  interests.  Winslow  v.  Goodwin,  7  Met.  363 ;  Dalton  v.  Savage, 
9  Met.  28. 

By  a  devise  of  land  in  trust  to  the  separate  use  of  a  married  woman, 
her  heirs  and  assigns,  to  be  managed  and  invested  under  her  direction, 
and  the  income,  or,  if  she  require  it,  the  principal,  to  be  paid  to  her ;  and 
upon  the  death  of  her  husband,  the  whole  property  to  be  conveyed  to 
her  in  fee-simple  ;  and  upon  her  death,  to  be  conveyed  to  such  persons 
as  she  may  appoint,  or,  on  failure  of  such  appointment,  to  her  children  ; 
the  children,  on  the  death  of  their  mother,  witliout  having  made  such 


DESCENT    AND    DISTRIBUTION.  221 

they  shall  descend,  subject  to  his  or  her  debts,  in  manner 
following :  — 

"  First.  In  equal  shares  to  his  or  her  children,  and  the 
issue  ^  of  any  deceased  child  by  right  of  representation  ; 
and  if  there  is  no  surviving  child  of  the  intestate,  then 
to  all  his  or  her  other  lineal  descendants.  If  all  the  de- 
scendants are  in  the  same  degree  of  kindred  to  the  intes- 
tate, they  shall  share  the  estate  equally ;  otherwise,  they 
shall  take  according  to  the  right  of  representation. 

"  Second.  If  the  intestate  leaves  no  issue,  then  in 
equal  shares  to  his  or  her  father  and  mother. 

"  Third.  If  the  intestate  leaves  no  issue  nor  mother, 
then  to  his  or  her  father. 

"  Fourth.  If  the  intestate  leaves  no  issue  nor  father, 
then  to  his  or  her  mother. 

"  Fifth.  If  the  intestate  leaves  no  issue  and  no  father 
nor  mother,  then  to  his  or  her  brothers  and  sisters,  and 
to  the  issue  of  an}^  deceased  brother  or  sister,  by  right 
of  representation. 

"  Sixth.  If  he  leaves  no  issue,  and  no  father,  mother, 
brother,  nor  sister,  then  to  his  next  of  kin  in  equal 
degree  ;  except  that  when  there  are  two  or  more  col- 
lateral kindred  in  equal  degree,  but  claiming  through 
different  ancestors,  those  who  claim  through  the  nearest 
ancestor  shall  be  preferred  to  those  claiming  through  an 
ancestor  who  is  more  remote. 

appointment,  take  as  pnrcliasers  under  the  will  and  not  by  descent  from 
her.     Hubbard  v.  Rawson,  4  Gray,  242. 

Real  estate  held  by  an  executor  or  administrator  in  mortgage,  or  on 
execution  for  a  debt  due  the  deceased,  is  considered  personal  assets  in 
his  hands,  and  if  not  sold  by  him  or  redeemed  does  not  descend  to  the 
heirs  as  real  estate,  but  is  assigned  and  distributed  to  the  same  persons 
and  in  tlie  same  proportions  as  if  it  had  been  part  of  the  personal  estate 
of  the  deceased.     Gen.  Sts.  c  96,  §  14. 

1  The  word  "issue,"  as  applied  to  tlie  descent  of  estates,  includes  all 
the  lawful  lineal  descendants  of  the  ancestor.     Gen.  Sts.  c.  3,  §  7,  cl.  9. 


222  PROCEEDINGS    IN    THE    PROBATE    COURTS. 

'•  Seventh.  If  the  intestate  leaves  a  widow  and  no 
kindred,  his  estate  shall  descend  to  his  widow ;  and  if 
the  intestate  is  a  married  woman,  and  leaves  no  kindred, 
her  estate  shall  descend  to  her  husband. 

"  Eighth.  If  the  intestate  leaves  no  kindred,  and  no 
widow  or  husband,  his  or  her  estate  shall  escheat  to  the 
Commonwealth. 

"  Sect.  2.  Section  one  of  chapter  ninety-one  of  the 
General  Statutes  is  hereby  repealed. 

"  Sect.  3.  The  descent  prescribed  by  section  one  of 
this  act  shall  be  subject  to  and  controlled  by  the  pro- 
visions of  law  respecting  dower,  curtesy,  and  homestead 
estates. 

"  Sect.  5.  This  act  shall  take  effect  on  the  first  day 
of  October  next,  but  shall  not  affect  the  descent  or  dis- 
tribution of  the  estate  of  any  person  deceased  prior  to 
that  date.''  ^ 

1  Section  one  of  chapter  ninety-one  of  the  General  Statutes,  muler 
which  the  estates  of  persons  deceased  prior  to  October  1,  1876  descend, 
provides  that :  — 

"  AVhen  a  person  dies  seised  of  land,  tenements,  or  hereditaments,  or, 
of  any  right  tiiereto,  or  entitled  to  any  interest  therein,  in  fee-simple  or 
for  the  life  of  another,  not  having  lawfully  devised  the  same,  they  shall 
descend,  subject  to  his  debts,  except  as  provided  in  chapter  one  hundred 
and  four  (relating  to  homestead  rights)  in  manner  following:  — 

"First.  In  equal  shares  to  his  children  and  the  issue  of  any  deceased 
child,  by  right  of  representation  ;  and  if  there  is  no  child  of  the  intestate 
living  at  his  death,  then  to  all  his  other  lineal  descendants ;  if  all  the  de- 
scendants are  in  the  same  degree  of  kindred  to  the  intestate,  they  shall 
share  the  estate  equally  ;  otherwise,  they  shall  take  according  to  the  right 
of  representation ; 

"  Second.     If  he  leaves  no  issue,  then  to  his  father; 

"  Third.  If  he  leaves  no  issue  nor  father,  then  in  equal  shares  to  his 
mother,  brothers,  and  sisters,  and  to  the  children  of  any  deceased  brother 
or  sister  by  right  of  representation  ; 

[This  provision  does  not  include  the  children  of  a  deceased  child  of  a 
deceased  brother  or  sister.     Bigelow  v.  Morong,  103  Mass.  287.] 

"Fourth.     If  he  leaves  no  issue,  nor  father,  and  no  brother  nor  sister, 


DESCENT    AND    DISTRIBUTION.  223 

AS   TO   ILLEGITEVIATE   CHILDREN. 

"An  illegitimate  child  shall  be  heir  of  his  mother  and 
any  maternal  ancestor,  and  the  lawful  issue  of  an  ille- 

living  at  his  death,  then  to  his  mother,  to  the  exclusion  of  the  issue,  if 
any,  of  deceased  brothers  or  sisters  ; 

"  Fiftli.  If  he  leaves  no  issue,  and  no  father,  mother,  brother,  nor  sis- 
ter, then  to  his  next  of  kin  in  equal  degree  ;  except  that  when  there  are 
two  or  more  collateral  kindred  in  equal  degree,  but  claiming  through  dif- 
ferent ancestors,  those  who  claim  through  the  nearest  ancestor  shall  be 
preferred  to  those  claiming  through  an  ancestor  who  is  more  remote  : 
provided  ; 

"  Sixth.  If  a  person  dies  leaving  several  children,  or  leaving  one 
child  and  the  issue  of  one  or  more  others,  and  any  such  surviving  child 
dies  under  age  and  not  having  been  married,  all  the  estate  that  came  to 
the  deceased  child  by  inheritance  from  such  deceased  parent,  shall  descend 
in  equal  shares  to  the  other  children  of  the  same  parent,  and  to  the  issue 
of  any  such  other  children  who  liave  died,  by  right  of  representation ; 

"  Seventh.  If  at  the  death  of  such  child  who  shall  have  died  under 
age  and  not  having  been  married,  all  the  other  children  of  his  said  parent 
are  also  dead,  and  any  of  them  have  left  issue,  the  estate  that  came  to 
such  child  by  inheritance  from  his  said  parent  shall  descend  to  all  the 
issue  of  the  other  children  of  the  same  parent ;  and  if  all  the  issue  are 
in  the  same  degree  of  kindred  to  the  child,  they  shall  share  the  estate 
equally  ;  otherwise  they  sliall  take  according  to  the  right  of  representa- 
tion ; 

[The  sixtli  and  seventh  clauses  modify  the  antecedent  rule  under  cer- 
tain circumstances.  The  share  of  the  child  who  dies  under  age  and 
unmarried,  goes  exclusively  to  the  surviving  issue  of  the  deceased  parent. 
The  distribution  first  made  of  the  parent's  estate  is  ineffectual  as  to  the 
share  of  tlie  child  who  lias  not  lived  to  dispose  of  it,  and  tliat  sliare  is 
considered  as  having  reverted  to  the  parent's  estate.  It  is  considered, 
not  as  the  estate  of  the  child,  but  as  estate  of  the  parent  remaining  to 
be  distributed;  and  it  descends  to  the  children  or  grandchildren  of  the 
parent  in  like  manner  as  if  he  had  not  died  until  after  the  death  of  tiie 
cliild.  This  provision  applies  only  to  estate  inherited  from  the  parent. 
Estate  devised  to  tlie  child  by  the  parent  descends  to  the  heirs  of  the 
child  under  the  general  rule  reguhiting  the  descent  of  intestate  estates.] 

"  Eigiith.  If  tlie  intestate  leaves  a  widow  and  no  kindred,  his  estate 
shall  descend  to  his  widow  ;  and  if  the  intestate  is  a  married  woman  and 
leaves  no  kindred,  iier  estate  shall  descend  to  her  liusband  ; 

"  Ninth.  If  the  intestate  leaves  no  kindred,  and  no  widow  or  husband, 
his  or  her  estate  siiall  escheat  to  the  Connnonwealtii." 


224  PROCEEDINGS   IN    THE    PROBATE    COURTS. 

gitimate  person  shall  represent  such  person  and  take  by 
descent  any  estate  which  the  parent  would  have  taken 
if  living.^ 

"  If  an  illegitimate  child  dies  intestate,  without  lawful 
issue,  his  estate  shall  descend  to  his  mother. 

"  An  illegitimate  child  whose  parents  have  intermar- 
ried and  whose  fath'er  has  acknowleged  him  as  his  child, 
shall  be  considered  legitimate." 


RIGHT  OF   REPRESENTATION". 

Inheritance  or  succession,  "  by  right  of  representation," 
takes  place  when  the  descendants  of  a  deceased  heir  take 
the  same  share  or  right  in  the  estate  of  another  person 
that  their  parent  would  have  taken  if  living.^  If  the 
ancestor  leaves  children,  and  there  is  no  living  issue  of 
any  deceased  child,  they  will  share  his  estate  equally  ; 
if  he  leaves  grandchildren  only,  they  will  take  it  in 
equal  shares  ;  and  if  he  has  no  children  or  grandchildren 
living  at  the  time  of  his  death,  his  great-grandchildren, 
if  any,  being  his  lineal  descendants,  and  all  of  an  equal 
degree  of  consanguinity  to  him,  will  take  the  inheri- 
tance equall3\* 

But  when  the  lineal  descendants  of  tlie  ancestor, 
living  at  the  time  of  his  death,  are  not  of  an  equal  de- 
gree of  consanguinity  to  him,  —  as,  for  instance,  when 
he  leaves  one  son  and  two  or  more  grandchildren  who 
are  the  children  of  a  deceased  son,  —  the  rule  of  repre- 
sentation applies.  The  son,  in  such  case,  takes  half  the 
estate,  and  tlie  children  of  the  deceased  son  represent 

1  A  bastard  and  his  issue  cannot  inherit  from  his  mother's  collateral 
kindred.  Pratt  v.  Atwood,  108  Mass.  40 ;  Haraden  i-.  Larrabee,  113  Mass. 
430. 

2  Gen.  Sts.  c.  91,  §  12. 


DESCENT   AND    DISTRIBUTION.  225 

their  father,  and,  together,  take  the  other  half,  which 
is  the  same  share  that  their  father  would  have  taken  if 
living.  Or  suppose  the  ancestor  leaves  B.,  his  onl}'  sur- 
viving son,  and  D.  and  E.,  grandsons  by  his  deceased 
son  C,  and  F.  and  G.,  great-grandsons  by  H.,  a  daugh- 
ter of  C,  H.  being  also  dead.  Here  would  be  lineal 
descendants  living  in  three  different  degrees  of  consan- 
guinity ;  namely,  a  son,  two  grandsons,  and  two  great- 
grandsons:  B.,  the  son,  would  take  the  half  estate;  D. 
and  E.,  two  of  the  three  children  of  C,  would  take 
two  thirds  of  the  other  half ;  and  F.  and  G.  would  take 
the  remaining  third  of  the  second  half;  and  all  would 
hold  as  tenants  in  common. 


AS    TO   THE   NEXT   OF   KIN. 

The  "  next  of  kin,"  to  whom  the  estate  descends  when 
the  intestate  leaves  no  issue,  and  no  father,  mother, 
brother,  or  sister,  are  to  be  ascertained  by  reference  to 
the  rules  of  the  civil  law,  according  to  which  the  de- 
grees of  kindred  are  computed.^  According  to  those 
rules,  the  father  of  the  intestate  stands  in  the  first  de- 
gi-ee,  his  grandfather  in  the  second,  his  great-grandfather 
in  the  third,  etc.  The  child  of  the  intestate  is  also  in 
the  first  degree,  his  grandchild  in  the  second,  his  great- 
grandchild in  the  third  ;  the  rule  of  computation  being 
the  same,  both  in  the  ascending  and  descending  lines. 
The  degree  of  kindred  in  which  a  collateral  kinsman 
stands  is  calculated  by  counting  upwards  from  the  intes- 
tate to  the  common  ancestor  of  both,  and  then  doAvn- 
wards  to  such  collateral  relative,  reckoning  one  degree 
for  each  person.  Thus,  the  intestate  and  his  cousin  are 
related  in  the  fourth  degree  :  the  intestate's  fatlier  being 

1  Gen.  St9.  c.  91,  §  6. 
15 


226      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

in  the  first  degree  ;  his  grandfather,  their  common  ances- 
tor, in  the  second  ;  his  uncle,  counting  downwards  from 
the  common  ancestor,  in  the  third ;  his  uncle's  son  (his 
cousin)  in  the  fourth.  The  intestate's  brother  stands  in 
the  second  degree,  his  nieces  and  nephews  in  the  third. 

The  statute  makes  no  distinction  between  ascendants 
and  descendants,  and  none  between  kindred  on  the 
father's  and  on  the  mother's  side  ;  ^  but  when  there  are 
two  or  more  collateral  kindred,  in  equal  degree,  those 
claiming  through  the  nearest  ancestor  are  preferred  to 
those  claiming  through  an  ancestor  more  remote.  The 
intestate's  nephew,  for  instance,  is  preferred  to  the  in- 
testate's uncle,  though  both  are  in  the  same  degree  of 
kindred.  The  common  ancestor  of  the  intestate  and  his 
uncle  is  the  intestate's  grandfather,  while  the  nephew 
claims  through  the  intestate's  father,  the  nearer  ancestor. 

Kindred  of  the  half-blood  inherit  equally  with  those 
of  the  whole  blood  in  the  same  degree.^ 


POSTHUMOUS   CHILDREN. 

A  posthumous  child  is  one  born  after  the  death  of  the 
parent.  Posthumous  children  inherit,  in  all  cases,  in 
like  manner  as  if  they  were  born  in  the  lifetime  of  the 
parent  and  had  survived  him.^ 

WHEN   THE   STATUTE   APPLIES    TO   TESTATE    ESTATES. 

The  statute  of  descents  may  apply  to  a  certain  extent 
to  testate  estates.     "  When  a  testator  omits  to  provide 

1  The  next  of  kin  of  a  deceased  intestate,  being  her  paternal  grand- 
mother and  her  maternal  grandfather  and  grandmother,  are  each  entitled 
to  a  third  part  of  the  intestate's  estate.     Knapp  v.  Windsor,  6  Cush.  166. 

2  Gen.  Sts.  c.  91,  §  5 ;  Larrabee  v.  Tucker,  116  Mass.  562. 
8  Gen.  Sts.  c.  91,  §  12. 


DESCENT    AND    DISTRIBUTION.  227 

in  his  will  for  any  of  his  children,  or  for  the  issue  of  a 
deceased  child,  they  shall  take  the  same  share  of  his  es- 
tate, both  real  and  personal,  that  they  would  have  been 
entitled  to  if  he  had  died  intestate  ;  unless  they  shall 
have  been  provided  for  by  the  testator  in  his  lifetime, 
or  unless  it  appears  tliat  the  omission  was  intentional, 
and  not  occasioned  b}^  accident  or  mistake."  ^ 

That  the  omission  was  intentional,  and  not  occasioned 
by  accident  or  mistake,  may  be  manifest  from  the  will 
itself.  It  has  been  held  that  the  fact  that  the  child  was 
named  in  the  will,  though  no  legacy  was  given  to  him, 
was  sufficient  to  show  that  he  was  not  forgotten  by  the 
testator,  and  that  the  omission  to  provide  for  him  was 
intentional.  And  where  the  testator  devised  estate  to  the 
children  of  his  daughter,  describing  them  as  such,  but 
giving  her  no  legacy,  the  same  rule  was  applied. ^  The 
fact  that  the  omission  was  designed  may  also  be  shown  by 
parol  evidence.  Evidence  of  the  statement  of  the  testa- 
trix to  the  attesting  witnesses,  when  the  will  was  exec- 
uted, that  she  intended  to  exclude  a  child,  has  been 
admitted  to  show  that  the  omission  was  intentional.^  The 
burden  of  proof  is  upon  the  party  opposing  the  claim  of 
the  child  to  show  that  the  omission  was  intentional.* 
The  statute  applies  to  children  born  after  the  making  of 
the  will,  and  before  the  death  of  the  father ;  ^  but  it  has 

*  Gen.  Sts.  c.  92,  §  25.  A  child  of  a  testator,  born  after  his  death,  cannot, 
in  any  proper  sense  of  the  term,  be  deemed  provided  for  in  his  will  by 
a  general  devise  of  a  reversion  to  the  heirs  of  the  testator.  Waterman 
V.  Hawkins,  63  Maine,  156. 

2  Terry  v.  Foster,  1  Mass.  146 ;  Church  v.  Crocker,  3  Mass.  17 ;  Wild 
V.  Brewer,  2  Mass.  570;  Wilder  v.  Goss,  14  Mass.  357. 

'  Wilson  V.  Fasket,  0  Met.  400 ;  Converse  v.  Wales,  4  Allen,  512 ; 
Ramsdill  v.  Wentworth,  101  Mass.  125. 

*  Ramsdill  v.  Wentworth,  106  Mass.  320. 

*  A  testator  gave  a  small  legacy  to  each  of  his  children,  living  at  the 
date  of  his  will,  by  name  (all  of  whom  died  before  him  without  issue), 


228      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

been  held  not  to  ap})ly  to  cases  where  the  testator  omits 
to  provide  for  an  illegitimate  child. ^  Nor  does  it  apply 
to  eases  where  the  testator  has  a  power  of  appointment 
over  the  estate  to  dispose  of  the  inheritance,  but  only  to 
cases  where  it  is  the  testator's  own  estate  in  fce.'^ 

A  child  for  whom  the  testator  has  unintenlioiially 
omitted  to  provide  may  cause  his  share  of  the  personal 
estate  to  be  ascertained,  by  applying  to  the  probate  court 
for  a  decree  of  distribution.'^  His  share  or  proportion  of 
the  real  estate,  if  certain  and  not  disputed  by  parties 
interested,  may  also  be  assigned  to  him  by  the  prol)ate 
court ;  *  if  his  share  is  disputed  and  uncertain,  he  must 
apply  to  the  common-law  courts  for  an  assignment  of 
his  share  of  the  real  estate. 

And  "  when  a  child  of  the  testator,  born  after  his  fath- 
er's death,  has  no  provision  made  for  him  by  his  father, 
in  his  will  or  otherwise,  he  shall  take  the  same  share  of 
his  father's  estate,  both  real  and  personal,  that  he  would 
have  been  entitled  to  if  his  father  had  died  intestate." 
Devisees  and  legatees  are  required  to  contribute  equally, 
in  proportion  to  the  value  of  what  they  respectively  re- 
ceive under  the  will,  to  the  share  of  a  posthumous  child, 
or  a  child  omitted  in  tlie  will  of  his  parent  ;  unless  there 
is  some  provision  in  the  will  requiring  a  diiferent  ap- 
portionment in  order  to  give  effect  to  the  intention  of 

and  the  residue  of  his  propert}'  to  his  wife  ;  and  afterwards  had  other 
children  born  to  him.  Held,  that  evidence  of  his  having  said  to  his  wife, 
since  the  birth  of  his  younger  children,  "  you  will  have  all  there  is,"  was 
not  sufficient  to  show  an  intent  to  omit  to  provide  for  them  in  his  will; 
and  tliat  they  were  entitled  to  the  same  share  of  his  estate  as  if  he  had 
died  intestate.     Bancroft  v.  Ives,  3  Gray,  367. 

1  Kent  V.  Barker,  2  Gray,  536. 

'^  Blagge  V.  Miles,  1  Story,  426.  And  see  Wilder  v.  Thayer,  97  Mass. 
430 ;  Bowdlear  c.  Bowdlear,  112  Mass.  184. 

*  See  Appendix,  form  No.  71. 

*  See  post,  Chap.  XVII.  on  Partition. 


DESCENT    AND    DISTRIBUTION.  229 

the  testator  as  to  that  part  of  his  estate  which  passes  by 
his  will.^ 

DISTEIBUTION   OF   PERSONAL   ESTATE. 

The  statute  2  provides  that  when  a  person  dies  pos- 
sessed of  personal  estate,^  or  any  right  or  interest 
therein,*  not  lawfully  disposed  of  by  will,  it  shall  be  ap- 
plied and  distributed  (the  allowances,  if  any,  made  to 
the  widow  and  minor  children,  and  the  debts  of  the 
deceased,  with  the  charges  of  his  funeral  and  of  the  ad- 
ministration having  first  been  paid)  among  the  same 
persons  who  would  be  entitled  to  his  real  estate,  and  in 
the  same  proportions,  except  that  : 

"  If  the  intestate  was  a  married  woman,  her  husband 
shall  be  entitled  to  the  whole  of  the  residue  ; 

"  If  the  intestate  leaves  a  widow  and  issue,  the  widow 
shall  be  entitled  to  one-third  of  the  residue  ;  ^ 

1  Gen.  Sts.  c.  92,  §§  26,  27.  2  ibid.  c.  94,  §  16. 

8  The  surplus  of  proeeeJs  of  land  sold  by  an  executor  or  administra- 
tor, remaining  on  the  settlement  of  his  accounts,  is  considered  real  estate, 
and  is  disposed  of  to  the  same  persons  and  in  the  same  proportions  as 
the  land  would  descend  if  not  sold.     Gen.  Sts.  c.  102,  §  44. 

*  The  statute  extends  to  contingent  as  well  as  vested  interests.  Dalton 
V.  Savage,  9  Met.  37. 

5  A  widow  who  waives  tlie  provision  made  for  her  in  the  will  of  her 
husband  thereby  becomes  entitled  to  such  portion  of  his  estate  as  slie 
would  liave  taken  if  he  had  died  intestate ;  provided,  however,  that  if  the 
share  of  the  personal  estate  to  which  she  would  thus  become  entitled 
exceeds  tlie  sum  of  ten  thousand  dollars,  she  is  entitled,  in  such  case,  to 
receive  in  her  own  riglit  the  ten  thousand  dollars,  and  the  income  only 
of  tlie  excess  of  said  share  above  said  sum  of  ten  thousand  dollars,  during 
her  natural  life.  Stat.  1861,  c.  164;  Firth  v.  Denny,  2  Allen,  468.  The 
$10,000  does  not  bear  interest  until  an  effectual  order  for  its  payment  to 
tlie  widow  has  been  made.  And  the  court  in  its  discretion  may  rnako 
such  order  without  waiting  for  the  final  distribution  of  the  estate.  Ather- 
ton  V.  Corliss,  101  Mass.  40;  Scullings  r.  Kichmond,  13  Allen,  277.  But 
the  inc(jme  of  the  excess  of  her  share  is  to  be  computed  from  the  time  of 
the  husband's  death.     Pollock  v.  Learned,  102  Mass.  49. 

A  widow  filed  her  waiver  and  died  before  the  probate  of  her  husband's 


230      TROCEEDINGS  IN  THE  PROBATE  COURTS. 

"  If  there  is  no  issue,  tlie  widow  shall  be  entitled  to 
the  residue  to  the  amount  of  five  thousand  dolhiis,  and 
to  one-half  the  excess  of  such  residue  above  ten  thousand 
dollars  ;  and 

"  If  there  is  no  husband,  widow,  or  kindred  of  tlie  in- 
testate, the  whole  shall  escheat  to  the  Commonwealth."'  ^ 

The  distribution  of  intestate  estates  is  within  tlie  pe- 
culiar and  exclusive  jurisdiction  of  the  probate  courts. 
The  administrator,  or  either  of  the  distributees,  on  appli- 
cation to  the  probate  couil,  can  obtain  a  decree  of  distri- 
bution specifying  the  names  of  persons  who  are  entitled 
to  share  in  the  estate  and  the  amount  to  which  each  is 
entitled.  In  the  great  majority  of  cases  of  persons  dying 
intestate,  the  heirs  and  distributees  will  be  the  children, 
parents,  brothers,  and  sisters,  or  other  near  connections, 
all  of  whom  may  be  known  to  the  administrator ;  and 
in  such  cases  the  administrator  is  practically  safe  in  pay- 
ing to  each  distributee  the  amount  to  which  he  is  enti- 
tled and  taking  his  receipt  therefor,  without  first  obtaining 
a  decree  of  distribution.  But  when  the  heirs  or  any  of 
them  are  residing  out  of  the  State,  or  when  the  admin- 
istrator has  doubts  as  to  who  is  entitled  to  share  in  the 
estate,  or  as  to  tlie  proportions  of  the  several  heirs,  he 
should  apply  to  the  court  for  a  decree  of  distribution. 
And  a  decree,  made  after  such  notice  as  the  court  may 
order,  settles  the  facts  as  to  who  are  entitled,  and  what 

will.  Held,  that  tlie  waiver  was  sufficient,  and  that  her  share  of  the 
estate  passed  to  her  representatives.     Atherton  v.  Corliss,  101  Mass.  40. 

The  mere  right  to  make  tlie  waiver  does  not  pass  to  her  representa- 
tives.    Sherman  v.  Newton,  0  Gray,  307. 

If  llie  widow  is  insane  or  a  minor,  her  guardian  may  make  the  waiver. 
Stat.  1871,  c.  97. 

The  rents  and  profits  of  real  estate  received  by  the  administrator  are 
not  personal  estate,  and  therefore  the  widow  is  not  entitled  to  a  distrib- 
utive share  thereof.     Stearns  v.  Stearns,  1  Pick.  157. 

^  As  to  distribution  of  insolvent  estates,  see  Chap.  XIII. 


DESCENT   AND   DISTRIBUTION.  231 

kill  are  living,  and  will  protect  an  administrator,  acting 
in  good  faith,  in  conforming  to  it ;  ^  and  be  is  held  by 
bis  bond  to  distribute  the  estate  as  the  court  may  order. 
A  decree  of  distribution  may  also  be  necessary  to  en- 
able the  next  of  kin  to  bring  a  suit  on  the  bond  of  an 
unfaithful  administrator  for  the  recovery  of  his  distribu- 
tive share  of  the  estate. 

THE  PETITION   FOR   DISTRIBUTION, 

The  petition  for  a  decree  of  distribution  should  state 
the  names  and  residences  of  each  of  the  supposed  dis- 
tributees, the  degree  of  kindred  in  which  each  of  them 
stands  to  the  intestate,  the  balance  in  the  hands  of  the 
administrator  for  distribution,  the  amount  of  any  ad- 
vancement made  by  the  intestate  in  his  lifetime  to 
either  of  the  heirs,  and  whether  such  advancement  was 
made  from  the  real  or  personal  estate,  or  both.  The 
petition  may  be  made  by  the  administrator,  or  any  party 
interested  in  the  distribution. 

Upon  such  petition,  such  notice  must  be  given  as  will 
be  most  likely  to  reach  the  parties  interested.  The  su- 
preme court  of  probate,  in  the  case  of  an  English  subject 
dying  in  this  State,  has  ordered  notice  to  be  j)ublished 
in  a  London  paper.  The  order,  whatever  may  be  its 
terms,  must  be  complied  with  by  the  petitioner,  before  a 
decree  of  distribution  can  issue. 

THE   DISTRIBUTION. 

A  decree  of  distril)ution  expiessedin  the  general  terms 
used  by  the  statute  to  designate  the  heirs  at  law  is  not 
sufficient.  It  is  for  the  court  to  ascertain  who  are  the 
existing  individuals  entitled,  under  the  statute,  to  share 
in  the  estate,  to  decree  distribution  to  them  by  name, 
1  Loring  v.  Steineman,  1  Met.  204.     See  Stat.  1866,  c.  122. 


232      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

and  determine  the  amount  due  to  each.^  If  all  the  par- 
ties a])pear  upon  notice,  or  are  known  to  be  living,  these 
questions  are  easily  determined.  A  more  difficult  ques- 
tion sometimes  arises  when  a  descendant  or  next  of  kin 
of  the  intestate  is  absent  from  the  State  and  cannot  be 
found.  Whether  such  person  shall  be  included  in  the 
distribution,  as  he  is  entitled  to  be  if  living,  must  be 
determined  by  the  rules  of  evidence  and  presumptions 
of  facts  from  circumstances,  which  are  resorted  to  by  all 
tribunals  in  determining  questions  of  fact.  The  possi- 
bility of  mistake  cannot  prevent  the  distribution,  and  the 
distribution  when  made  must  be  of  the  entire  estate.  If 
such  absent  heir  left  his  usual  home  for  temporary  pur- 
poses of  business  or  pleasure,  and  has  not  been  heard 
from  or  known  to  be  living  for  the  term  of  seven  years, 
the  piesumption  of  life  ceases  and  that  of  his  death 
arises.  It  must  appear  that  he  has  not  been  heard  of 
by  those  persons  who  would  be  likely  to  hear  of  him,  or 
that  search  has  been  ineffectually  made  for  such  a  per- 
son.''^ This  presumption  of  death  may  be  rebutted  by 
counter  evidence.  Where  other  circumstances  concurred, 
the  fact  of  death  has  been  found,  without  direct  evi- 
dence, from  tlie  lapse  of  a  shorter  period  than  seven 
years  ;  as,  when  the  party  sailed  in  a  vessel  which  had 
not  been  heard  from  for  a  much  longer  time  than  was 
necessarj-  for  the  accomplishment  of  the  voyage ;  ^  but 

1  Loring  v.  Steineman,  1  Met.  204.  The  court  will  not  order  a  dis- 
tributive share  to  be  paid  to  a  person  to  whom  the  heir  has  assigned  it; 
the  investigation  of  such  an  assignment  is  not  within  the  jurisdiction  of 
the  probate  court.  Knowlton  v.  Johnson,  46  Maine,  489 ;  Wood  v.  Stone, 
2  Chandler  (N.  H.),  572.  Nor  will  the  court  order  the  share  of  an  heir 
to  be  paid  to  the  other  heirs  on  the  ground  that  he  is  indebted  to  them. 
Hancock  v.  Hubbard,  19  Pick.  167. 

2  France  v.  Andrews,  16  Adol.  &  E.  756. 

3  Watson  V.  King,  1  Stark.  97. 


DESCENT    AND    DISTRIBUTION.  233 

the  presumption  of  law  does  not  attach  to  the  mere  lapse 
of  time  short  of  seven  years. 

If  such  person  was  unmarried  at  the  time  he  went 
abroad,  there  is  no  presumption  of  his  subsequent  mar- 
riage ;  and  if  the  fact  of  his  marriage  is  proved,  there  is 
no  presumption  that  he  left  issue.  These  are  facts  to 
be  proved,  and  the  burden  of  proof  of  the  affirmative  is 
on  the  party  who  avers  it.^ 

Under  some  circumstances,  it  is  impossible  to  ascer- 
tain with  certainty  what  persons  are  entitled  to  inherit 
an  estate,  as  when  several  near  relatives  perish  by  ship- 
wreck, or  other  common  disaster.  In  the  absence  of  all 
evidence  of  the  particular  circumstances  of  the  calamity, 
it  is  presumed  that  all  perished  together,  and  that  there- 
fore neither  could  transmit  rights  to  the  other.  Thus, 
where  a  father  and  his  only  child  perished  at  sea,  there 
being  no  evidence  showing  which  survived,  it  was  de- 
cided that  his  estate  should  go  to  his  nephews  and  nieces, 
his  heirs-at-law,  and  not  to  her  uncles  and  aunts,  who 
would  have  taken  it,  if  she  had  survived  her  father  and 
the  estate  had  vested  in  her.^  It  would  be  reasonable 
and  proper  to  hold  that  one  of  middle  age  and  in  the 
full  vigor  of  life  would  ordinarily  survive  a  mere  infant 
or  a  person  well  stricken  in  years.  And  evidence  of  cir- 
cumstances, however  slight,  attending  the  disaster,  are 
important,  as  from  slight  circumstances  inferences  of 
fact  materially  affecting  the  question  may  be  drawn. 

The  time  when  distribution  can  be  properly  made 
must  depend  upon  the  circumstances  of  each  case.  If 
all  the  persons  entitled  to  shares  are  known,  the  distri- 
bution may  be  made  at  any  time  after  the  debts  are  paid. 

1  Loring  v.  Steineman,  1  Met.  211;  Doe  v.  Griffin,  15  East,  '293;  la 
the  Goods  of  Main,  1  Swabey  &  Tris.  11. 
'^  Coye  V.  Leach,  B  Met.  371. 


234      PROCEEDINGS  TN  THE  PROBATE  COURTS. 

But  as  the  administrator  is  liable  to  the  actions  of  cred- 
itors for  two  3'ears  after  he  gives  bond,  the  payment  of 
any  distributive  share  during  the  continuance  of  such 
liabilit}-,  may  be  attended  with  risk,  unless  the  distribu- 
tee first  gives  bond,  as  the  court  may  require  him  to  do, 
for  the  protection  of  the  administrator.^ 

The  court,  after  notice  to  all  persons  interested,  may 
order  a  partial  distribution,  when  it  can  be  made  with- 
out detriment  to  the  estate.^ 

ADVANCEMENTS. 

The  subject  of  advancements  is  necessaril}^  to  be  con- 
sidered in  connection  with  the  descent  and  distribution 
of  intestate  estates.  Advancements  may  be  made  of 
real  or  personal  estate,  and  to  any  child  or  other  lineal 
descendant.  They  are  usually  made  with  a  view  of  es- 
tablishing a  son  in  business,  or  on  the  event  of  marriage. 
If  the  advancement  is  equal  to,  or  exceeds,  the  amount 
in  value  of  the  share  which  the  child  would  have  taken 
in  the  estate,  if  no  advancement  had  been  made,  such 
child  will  be  excluded  from  any  share  in  the  distri- 
bution ;  if  it  is  less  in  amount,  such  child  will  be  en- 
titled to  sufficient  in  the  distribution  to  make  up  his  full 
share,  and  no  more.  If  he  dies  before  the  intestate, 
leaving  issue,  the  amount  of  his  advancement  is  regarded 
as  so  much  received  by  his  representatives  towards  their 
share  of  the  estate,  in  like  manner  as  if  the  advancement 
had  been  directly  to  them.-^  He  is  not  required  to  refund 
any  part  of  the  advancement,  although  it  exceeds  his 
share  ;  *  and  interest  is  not  to  be  computed  on  it. 

If  the  advancement  is  made  in  real  estate,  its  value  is 

1  Gen.  Sts.  c.  97,  §  21.     See  Appendix,  form  No.  72. 

2  Stat.  1873,  c.  224.  '  Gen.  Sts.  c.  91,  §  10. 
*  Ibid.  §  6;  Stearns  v.  Stearns,  1  Tick.  161. 


DESCENT    AND    DISTRIBUTION  —  ADVANCEMENTS.      235 

considered  as  part  of  the  real  estate  to  be  divided  ;  if  in 
personal  estate,  as  part  of  the  personal  estate ;  and  if  in 
either  case  it  exceeds  the  share  of  real  or  personal  estate, 
respectively,  that  would  have  come  to  the  heirs  so  ad- 
vanced, he  does  not  refund  any  part  of  it,  but  receives 
so  much  less  out  of  the  other  part  of  the  estate  as  will 
make  his  whole  share  equal  to  those  of  the  other  heirs 
who  are  in  the  same  degree  with  him.^ 

Questions  concerning  advancements  are  determined 
by' the  probate  court,  and  the  judgment  of  the  court  is 
conclusive  unless  appealed  from.  Questions  as  to  ad- 
vancements of  personal  property  are  settled  by  the 
decree  of  distribution,  and  of  real  estate  by  the  decree 
of  partition. 

EVIDENCE   OF    ADVANCEMENTS. 

The  advancement  must  be  proved  to  have  been  in- 
tended as  such,  chargeable  on  the  child's  share  of  the 
estate  ;  otherwise,  it  will  be  deemed  an  absolute  gift,  or 
a  loan,  as  the  case  may  be.  The  statute  prescribes  what 
shall  be  the  requisite  evidence  of  an  advancement.  "  All 
gifts  and  grants  sliall  be  deemed  to  have  been  made  in 
advancement,  if  they  are  expressed  in  the  gift  or  grant 
to  be  so  made,  or  if  charged  in  writing  by  the  intestate 
as  an  advancement,  or  acknowledged  in  writing  as  such 
by  the  cliild  or  other  descendant."  ^  It  is  not  expressly 
provided  that  an  advancement  shall  not  be  proved  in 
any  other  manner,  but  that  is  undoubtedly  the  meaning 
of  the  statute.  It  has  according!}'  been  held  that  where 
a  note  was  given  by  a  son  for  money  received  by  him  of 
his  father,  oral  testimony  was  inadmissible  to  prove  that 
the  money  so  received  was  an  advancement.*^     Various 

1  Gen.  St8.  c.  91,  §  7 ;  Beniis  v.  Stearns,  16  Mass.  200. 

2  Gen.  St8.  c.  'Jl.  §  8.  »  Barton  i;.  Rice,  22  Pick.  508. 


236      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

sums  of  money,  charged  by  the  parent  in  the  usual  way 
of  keeping  accounts,  have  been  held  not  to  be  an  ad- 
vancement.^ And  where  land  was  conveyed  by  the 
father  to  the  son,  there  being  nothing  in  the  deed  to 
show  the  fact,  it  was  held  not  to  be  an  advancement.^ 
The  execution  of  a  will  merges  all  prior  advancements, 
it  being  deemed  that  the  testator  graduated  the  amount 
of  his  legacies  with  reference  to  them  ;  but  the  execution 
of  a  will  wliich  is  afterwards  revoked  cannot  operate  as 
a  merger.^ 

VALUE   OF   ADVANCEMENTS. 

The  statute  prescribes  the  manner  in  which  the  value 
of  advancements  shall  be  ascertained.  "  If  the  value  of 
the  estate  so  advanced  is  expressed  in  the  conveyance, 
or  in  the  charge  thereof  made  by  the  intestate,  or  in  the 
acknowledgment  by  the  party  receiving  it,  it  shall  be 
considered  as  of  that  value  in  the  division  and  distribu- 
tion of  the  estate ;  otherwise,  it  shall  be  estimated  ac- 
cording to  its  value  when  given."* 

1  Ashley,  appellant,  4  Pick.  21. 

''  Billiard  v.  Bullard,  5  Pick.  527.  A  written  acknowledgment,  signed 
by  husband  and  wife,  in  these  words,  "  Received  of  J.  S.  SoOO,  it  being  a 
part  of  my  wife's  portion,"  and  found  among  the  notes  of  J.  S.  after  his 
decease,  is  sufficient  proof  of  an  advancement  to  the  wife.  So  of  an  ac- 
knowledgment in  writing  by  a  husband,  whose  wife  is  insane,  of  a  gift 
from  her  father  for  her  support,  "as  a  part  of  her  portion  out  of  her 
father's  estate,"  preserved  by  the  father  in  a  bundle  of  letters  relating  to 
her  support  at  an  insane  asylum.  A  book  of  accounts,  kept  by  the  de- 
ceased, witli  three  leaves  cut  out,  together  with  evidence  of  his  declara- 
tions that  he  had  made  charges  in  his  book,  as  advancements  to  his 
children,  are  not  competent  evidence  of  such  advancements.  Ilartwell 
V.  Rice,  1  Gray,  587.  And  see  Fitts  v.  Morse,  103  Mass.  164 ;  Bigelow  v. 
Poole,  10  Gray,  104 ;  Loring  v.  Blake,  106  Mass.  592. 

3  Hartwell  v.  Rice,  1  Gray,  587.  ■»  Gen.  Sts.  c.  91,  §  9. 


DESCENT   AND    DISTRIBUTION  —  ADVANCEMENTS,       237 

THE  widow's   share   WHEN   ADVANCEMENTS   HAVE 
BEEN   MADE. 

If  the  intestate  leaves  a  widow  and  issue,  and  any  of 
the  issue  received  an  advancement  from  the  intestate, 
the  value  of  such  advancement  is  not  taken  into  consid- 
eration in  computing  the  widow's  one-third.  She  is  en- 
titled only  to  the  third  part  of  the  residue  of  the  personal 
estate,  after  deducting  the  value  of  the  advancement.^ 

DISTRIBUTION   WHEN   ADVANCEMENTS    HAVE   BEEN 
MADE. 

To  ascertain  the  share  to  which  each  heir  is  entitled, 
in  a  case  where  advancements  have  been  made :  first,  if 
there  is  a  widow,  deduct  from  the  sum  to  be  distributed 
one-third  for  her  share  ;  to  the  remainder  add  the  ad- 
vancement of  each  heir  who  has  received  less  than  a  full 
share,^  and  divide  the  sum  by  the  number  of  such  heirs. 
The  quotient  will  be  the  amount  of  a  full  share  of  the 
estate.  Each  heir  who  has  had  no  advancement  will  be 
entitled  to  a  full  share,  and  each  of  the  others  to  a  full 
share  less  the  amount  of  his  advancement.  Thus,  sup- 
pose the  administrator's  final  account  shows  a  balance 
in  his  hands  of  $9,000  ;  that  the  intestate  left  a  widow, 
four  children,  A,  B,  C,  and  D,  and  two  grandchildren, 
sons  of  E,  a  deceased  son  of  the  intestate,  and  that  A 
has  been  advanced  $2,000,  C  $1,000,  D  $800,  and  E 
$400  :  — 

1  Gen.  St8.  c.  94,  §  17. 

2  To  find  whether  either  of  the  heirs  has  received  more  timn  a  full 
share,  add  all  tlie  advancements  to  the  remainder,  and  divide  the  amount 
by  the  numher  of  all  the  lieirs  ;  if  the  quotient  be  less  than  tiio  advance- 
ment made  to  any  heir,  such  heir  and  tlie  amount  of  his  advancement 
must  be  altogetiier  omitted  in  the  computation. 


238      TROCEEDINGS  IN  THE  PROBATE  COURTS. 

Amount  to  be  distributed 89,000 

Deduct  widow's  share,  one-tbird    ....     3,000 

$6,000 

Add  A's  advancement 2,000 

„    C's  „  1,000 

„    D's  „  800 

„    E's  „  400 

There  being  five  shares 6)10,200 

Amount  of  a  full  share $2,040 

A  will  take 40 

B,  having  had  no  advancement,  will  take  a 

full  share 2,040 

C  will  take 1,040 

D    „      „        _ 1,240 

The  two  grandsons  together  will  take     .     .  1.640 

$6,000 

PERPETUATION  OF  EVIDENCE  OF  PAYMENTS  UNDER 
THE  DECREE  OF  DISTRIBUTION  —  DISCHARGE  OF 
EXECUTOR,    &C. 

The  decree  of  distribution  contains  the  names  of  all 
the  persons  entitled  to  share  in  the  personal  estate  of 
the  deceased,  and  specifies  the  amount  to  which  each  is 
entitled.  The  administrator  is  directed  to  give  written 
notice,  by  mail  or  otherwise,  to  each  of  the  persons 
named  in  the  decree  of  the  amount  due  him  or  her,  and 
if  any  of  the  sums  remain  for  six  months  unclaimed,  to 
deposit  the  same  in  a  savings-bank  (designated  in  the 
order),  in  the  name  of  the  judge  of  the  probate  court 
for  the  time  being,  to  accumulate  for  the  benefit  of  the 
persons   entitled    thereto.     The   statute    provides   that 


DESCENT    AND    DISTRIBUTION  —  ADVANCEMENTS.        239 

when  the  mone}^  has  been  paid  or  deposited  by  an  ex- 
ecutor, administrator,  guardian,  or  trustee  in  accordance 
with  the  terms  of  the  decree,  he  may  perpetuate  the 
evidence  thereof  by  presenting  to  the  probate  court, 
within  one  year  after  the  decree  is  made,  an  account  of 
such  payments ;  which  being  proved  to  the  satisfaction 
of  the  court,  and  verified  by  the  oath  of  the  party,  shall 
be  allowed  as  his  final  discharge.^ 

Papers  or  instruments  discharging  any  claim,  or  pur- 
porting to  acknoAvledge  the  performance  of  an}'-  duty  or 
the  payments  of  money  for  which  an  executor,  adminis- 
trator, guardian,  or  trustee  is  chargeable  or  accountable 
in  probate  court,  may  be  recorded  in  the  registry  of 
probate  upon  the  request  of  a  party  interested. ^ 

The  administrator  may  conveniently  render  his  account 
of  payments  and  deposits  made  under  a  decree  of  distri- 
bution by  returning  to  the  court  the  original  decree,  with 
the  receipts  of  the  several  distributees  and  certificates  of 
deposit,  and  his  own  certificate  of  the  fact  that  the  terms 
of  the  order  have  been  complied  with.  In  a  majority  of 
cases,  the  administrator  is  practically  safe  in  taking  re- 
ceipts from  the  persons  to  whom  he  makes  payments, 
without  rendering  a  further  account ;  but  it  is  only  by 
rendering  such  an  account  that  he  can  obtain  a  formal 
discharge  from  liability  under  the  decree. 

When  the  person  entitled  to  a  sum  of  money  deposited 
in  a  savings-bank  by  the  administrator  under  a  decree 
of  distribution  satisfies  the  judge  of  his  right  to  receive 
the  same,  the  judge  will  cause  it  to  be  paid  over  to  him. 
The  person  so  entitled  to  the  money  should  make  a  rep- 
resentation in  writing  to  the  court  showing  the  grounds 
of  his  claim,  and,  if  the  money  is  ordered  to  be  paid  to 

1  Gen.  Sts.  c.  101,  §§  7,  8. 

2  Stat.  1804,  c.  y3. 


240      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

him,  slioukl  procure  an  attested  copy  of  the  order  for 
presentation  at  the  bank.^ 

The  guardian  of  a  ward  who  removes  or  resides  out 
of  this  State  may  pay  the  proceeds  of  the  sale  of  the 
^yard's  real  estate,  and  ti-ansfer  all  his  personal  estate, 
to  any  guardian,  trustee,  or  committee  duly  appointed 
in  the  State  or  county  where  the  ward  resides,  upon 
such  terms  and  in  such  manner  as  the  probate  court 
for  the  county  in  which  such  estate  is  found  may 
decree,  upon  a  petition  filed  and  after  notice  to  parties 
interested. 2 


BALANCES    IN   THE   HANDS   OF   PUBLIC   ADMINIS- 
TRATORS. 

"  When  an  estate  has  been  fully  administered  by  a 
public  administrator,  and  the  debts  paid  according  to 
law,  he  shall  deposit  the  balance  of  such  estate  remain- 
ing in  his  hands  with  the  treasurer  of  the  Commonwealth, 
who  shall  receive  and  hold  it  for  the  benefit  of  those 
who  may  have  lawful  claims  thereon. 

"  If  at  any  time  within  six  years  after  such  deposit  is 
made  with  the  treasurer,  any  person  applies  to  the  pro- 
bate court  which  granted  said  letters  of  administration, 
and  makes  it  appear  that  he  is  legally  entitled  by  the 
will  of  the  deceased  or  otherwise  to  the  administration 
of  said  estate,  the  court  shall  grant  administration 
thereof,  or,  upon  probate  of  such  will,  shall  grant  let- 
ters testamentary  to  such  applicant,  or  at  his  request  to 
some  other  suitable  person  ;  provided  that,  before  grant- 
ing such  administration,  the  court  shall  order  personal 
notice  of  the  application  to  be  served  at  least  fourteen 

1  Gen.  Sts.  c  101,  §  9.     See  Appendix,  forms  Nos.  73,  74. 

2  Stat.  1866,  c.  122. 


DESCENT   AND    DISTRIBUTION  —  ADVANCEMENTS.        241 

days  before  the  hearing,  upon  a  public  administrator  of 
the  count}-,  who  shall  appear  in  behalf  of  the  Common- 
wealth ;  and  either  party  may  appeal  from  any  decree 
therein. 

"  After  the  expiration  of  thirty  days  from  the  appoint- 
ment of  an  executor  or  administrator,  as  provided  in  the 
preceding  section,  if  no  appeal  is  claimed  by  any  person 
interested,  the  treasurer  shall  pay  over  to  such  executor 
or  administrator  all  money  deposited  in  the  State  treas- 
ury to  the  credit  of  such  estate,  to  be  administered  in 
like  manner  as  the  estates  of  other  deceased  per- 
sons." 

"  Upon  the  death,  resignation,  or  removal  of  a  public 
administrator,  the  probate  court  shall  issue  a  warrant  to 
some  other  public  administrator  in  the  same  county  on 
his  application  therefor,  requiring  him  to  examine  the 
accounts  of  such  late  public  administrator,  touching  the 
estates  on  which  he  has  taken  out  letters  of  administra- 
tion, and  to  return  into  the  probate  court  a  statement 
of  all  such  estates,  not  fully  administered,  and  of  the 
balance  of  each  estate  remaining  in  his  hands  at  the 
time  of  his  death,  resignation,  or  removal.  And  there- 
upon the  court  shall  issue  to  the  public  administrator 
making  the  return,  upon  his  giving  the  requisite  bond, 
letters  of  administration  upon  such  of  said  estates  as  are 
not  ah'eady  administered,  although  the  personal  estate 
remaining  may  not  amount  to  twenty  dollars. 

"  When  a  public  administrator  neglects  to  return  an 
inventory,  settle  an  account,  or  perform  any  other  duty 
incumbent  on  him,  in  rehition  to  any  estate,  and  there 
appears  to  be  no  heir  entitled  thereto,  the  district-attor- 
ney for  llie  district  within  which  the  administrator  re- 
ceived his  letters,  shall,  in  behalf  of  the  Commonwealth, 

16 


242      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

prosecute  all  suits  and  do  all  acts  necessary  and  proper 
to  insure  a  prompt  and  faithful  administration  of  the 
estate,  and  the  payment  of  the  proceeds  thereof  into  the 
treasury."  ^  In  all  suits  and  legal  proceedings  under 
this  section,  if  no  heir  has  appeared  and  made  claim  in 
the  probate  court  for  his  interest  in  any  estate  under 
administration  by  a  public  administrator  within  two  years 
after  granting  letters  of  administration,  it  will  be  pre- 
sumed that  there  is  no  such  heir,  and  the  burden  of 
proving  the  existence  of  such  heir  is  upon  the  public 
administrator.^ 

"  It  shall  be  the  duty  of  every  public  administrator, 
whenever  money  or  personal  property  of  a  value  less  than 
twenty  dollars  is  delivered  to  him  by  a  coroner  according 
to  law,  and  in  every  other  case,  where  the  total  property 
of  an  intestate  which  has  come  into  his  possession  or 
control  is  of  a  value  less  than  twenty  dollars  (unless  the 
same  is  the  balance  of  an  estate  received  from  a  prior 
public  administrator,  according  to  the  statute),  forthwith 
to  reduce  all  such  property  into  money,  not  taking  ad- 
ministration thereon,  and  to  deposit  such  money,  first 
deducting  his  reasonable  expenses  and  charges,  with 
the  treasurer  of  the  Commonwealth,  who  shall  receive 
and  hold  it  for  the  benefit  of  those  who  shall  have  legal 
claims  thereon. 

"  Every  public  administrator,  upon  making  such  de- 
posit, shall  file  with  the  treasurer  a  true  and  particular 
account,  under  oath,  of  all  his  dealings,  receipts,  pay- 
ments, and  charges,  on  account  of  the  propert}^  from 
which  the  money  so  deposited  proceeds,  including  the 
name  of  the  intestate,  if  known  to  him,  and  the  treasurer 
shall  thereupon  deliver  to  him  a  receipt  for  such  money. 

1  Gen.  Sts.  c.  95,  §§  12-17. 

2  Stat.  1874,  c.  105. 


DESCENT   AND   DISTRIBUTION  —  ADVANCEMENTS.        243 

And  such  deposit  with  the  Commonwealth  shall  exempt 
the  j)ublic  administrator  making  it  from  all  responsibility 
to  any  party  or  person  whomsoever,  by  reason  of  his 
having  received  and  disposed  of  the  property  of  the  in- 
testate, as  herein  provided."  ^ 

1  Stat.  1874,  c.  254. 


CHAPTER  XVII. 

PARTITION  OF  LANDS  IN  THE  PROBATE  COURT. 

The  probate  court  in  which  the  estate  of  any  deceased 
person  is  settled,  or  in  a  course  of  settlement,  may  make 
partition  of  all  his  real  estate  lying  within  the  State 
among  his  heirs  or  devisees,  and  all  persons  holding  un- 
der them  by  conveyance  or  otherwise  ;  ^  and  the  probate 
court  in  each  county  has  concurrent  jurisdiction  with 
the  supreme  judicial  and  superior  courts  of  petitions  for 
partition  of  lands  within  the  county  held  by  joint  ten- 
ants, coparceners,  or  tenants  in  common.^ 

The  proceedings  for  partition  among  heirs  and  devi- 
sees must  be  in  the  probate  court  of  the  same  county  in 
which  letters  testamentary  or  of  administration  were 
regularly  granted.  No  other  probate  court  can  have 
jurisdiction  ;  and,  if  the  grant  of  administration  was  void 
for  want  of  jurisdiction,  the  court  in  which  such  void 
administration  was  granted  has  no  power  to  order  par- 
ti tion.^ 

No  partition  can  be  made  by  the  probate  court  when 
the  shares  or  proportions  of  the  respective  parties  are  in 
dispute  between  them,  or  appear  to  the  judge  to  be  un- 
certain, depending  upon  the  construction  or  effect  of  any 
devise  or  other  conveyance,  or  upon  other  questions 
that  he  deems  proper  for  the  consideration  of  a  jury  and 
a  court  of  common  law.^ 

1  Gen.  St8.  c.  136,  §  48.  2  stat.  1874,  c.  266. 

3  Sigouruey  v.  Sibley,  21  Pick.  101. 

*  Gen.  Sis.  c.  136,  §  60.     It  is  the  duty  of  tlie  probate  court  to  make 


PARTITION    OF    LANDS.  245 

Partitions  may  be  made,  notwithstanding  the  existence 
of  any  lease  of  the  whole  or  a  part  of  the  estate  to  be 
divided ;  but  the  partition  cannot  prejudice  the  right  of 
a  lessee.  Partitions  may  be  made,  notwithstanding  any 
of  the  tenants  in  common  may  be,  alone  or  jointly  with 
others,  trustee,  attorney,  or  guardian  of  any  other 
tenant.^ 

When  an  estate  or  right  of  homestead  exists  in  prop- 
erty in  which  other  parties  have  an  interest,  the  party 
entitled  to  the  homestead,  or  any  other  party  interested, 
may  upon  petition  have  partition  thereof  like  tenants  in 
common.^ 

The  court  will  not  order  a  partition  when  all  the 
owners  of  the  real  estate  in  question  join  in  the  petition. 
If  all  the  owners  desire  partition,  they  can  make  it 
among  themselves  by  deed.^ 

The  statute  requires  the  partition,  when  made  on  the 
application  of  an  heir,  shall  be  made  of  all  the  estate 
that  descended  from  the  ancestor,  and  which  any  party 
interested,  whether  the  applicant  or  others,  requires  to 

the  partition  if  there  is  no  real  uncertainty  as  to  the  shares  or  proportions 
of  tlie  parties,  aithougli  one  of  the  parties  may  insist  tliat  there  is  a  dis- 
pute or  controversy  concerning  them.  Dearborn  v.  Preston,  7  Allen, 
192. 

If  the  probate  court  has  properly  assumed  jurisdiction  and  issued  a 
warrant  to  commissioners,  the  court  may  retain  its  jurisdiction,  although  it 
subsequently  appears  that  the  shares  or  proportions  of  the  parties  are 
uncertain.     Potter  u.  Hazard,  11  Allen,  187. 

If  it  appears,  upon  petition  for  partition  among  joint  tenants,  co-par- 
ceners or  tenants  in  common,"  that  the  shares  are  in  dispute  or  uncertain, 
the  court  may  order  the  case  removed  to  the  superior  court,  and  the  case 
shall  be  so  removed  at  the  request  of  any  party  in  interest."  —  Stat.  1874, 
c.  2GG. 

1  Gen.  Sts.  c.  136,  §§  67,  68. 

■■'  Ibid.  c.  104,  §  9;  Parks  v.  Reilly,  5  Allen,  77;  Woodward  v.  Lin- 
coln, 9  Allen,  241. 

3  Winthrop  v.  Minot,  9  Cush.  405;  Swett  i;.  Bussey,  7  Mass.  503. 


246      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

have  included  in  the  partition  ;  and  when  made  on  the 
application  of  a  devisee,  it  shall  be  made  of  all  the  estate 
held  by  the  applicant  jointly  or  in  common  with  others 
holding  under  the  testator,  Avhich  he  or  any  other  devi- 
see requires  to  have  included.  The  same  rule  applies 
when  the  application  is  made  by  any  person  holding 
under  an  heir  or  devisee.^ 

Upon  every  such  partition  the  court  not  only  assigns 
to  the  applicant  his  share  in  the  premises,  bat  causes  the 
residue  to  be  divided  among  the  parties  interested,  and 
the  share  of  each  one  to  be  assigned  to  him,  unless  two 
or  more  of  the  parties  consent  to  hold  their  shares  to- 
gether and  undivided.^ 

A  widow's  right  to  dower  is  no  bar  to  a  partition 
among:  tenants  in  common.^ 


PRELIMINABY  PROCEEDINGS   IN   PROBATE   COUBT. 

Proceedings  for  partition  in  the  probate  court  are 
commenced  by  petition  signed  by  one  or  more  of  the 
parties  interested  in  the  real  estate.  The  petitioner 
should  state  the  proportion  which  his  share  bears  to 
the  whole  estate,  and  whether  he  claims  as  heir  or  de- 
visee. The  names  and  residences  of  all  the  other  par- 
ties interested  should  be  stated,  and  if  any  of  them  are 
married  women,  the  names  of  their  husbands ;  if  any  are 
minors,  the  fact  should  appear,  and  the  names  and  resi- 
dences of  the  guardians,  if  any,  should  be  stated.  If 
any  part  of  the  land  of  the  deceased  lies  in  common 
with  that  of  another  person,  a  description  of  such  land 
should  be  annexed  to  the  petition,  and  the  share  of  the 
deceased  therein,  and  the  names  of  the  cotenants  should 

1  Gen.  Sts.  c.  136,  §  54.  2  ibid.  §  55. 

8  Ward  V.  Gardner,  112  Mass.  42. 


PAETITION    OF   LANDS.  247 

be  stated.  If  there  are  any  advancements  made  by  the 
deceased  to  be  considered  in  making  the  partition,  the 
several  sums  advanced  and  the  names  of  the  persons 
who  received  them  should  be  fully  stated. 

A  guardian  may  petition  for  the  partition  of  his  ward's 
real  estate.^ 

Notice  of  the  petition  is  required  to  be  given  to  all 
the  parties  interested  to  appear  and  show  cause  against 
it.  The  citation  may  be  issued  by  the  register  of  probate 
on  any  day  when  the  petition  is  filed  in  the  probate 
office.  The  notice  must  be  served  fourteen  days  before 
the  time  appointed  for  the  hearing  on  the  parties  person- 
ally if  they  can  be  found  within  the  State,  and,  if  not, 
it  must  be  published  once  a  week  for  three  weeks  at  least, 
before  such  hearing,  in  such  newspapers  as  the  court 
shall  order.2  A  cotenant  must  be  served  by  delivering  to 
him  an  attested  copy  of  the  citation,  or  by  leaving  such 
copy  at  his  place  of  abode  in  this  State.^ 

All  persons  who  would  be  bound  by  the  partition  are 
entitled  to  notice,  whether  they  have  an  estate  of  inherit- 
ance, for  life  or  years,  in  possession,  remainder,  or  rever- 
sion, and  whether  vested  or  contingent ;  and  if  the  peti- 
tioner holds  an  estate  for  life  or  years,  the  person  entitled 
to  the  remainder  or  reversion  is  entitled  to  notice  as  one 
of  the  parties  interested.  In  cases  in  which  remainders  or 
estates  are  devised  or  limited  to,  or  in  trust  for,  persons 
not  in  being  at  the  time  of  the  application  for  partition, 
notice  must  be  given  to  the  persons  who  may  be  parents 
of  such  persons,  setting  forth  the  origin  and  nature  of  the 
remainder  or  interest  so  devised  or  limited.^ 

At  the  time  named  in  the  order  of  notice,  any  person 
interested  may  appear  and  be  heard  upon  the  petition. 

1  Gen.  Sts.  c.  109,  §  20.  «  Ibid.  c.  136,  §  61. 

»  Ibid.  §  62.  *  Ibid.  c.  136,  §§  6,  69, 


248      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

If  it  appears  that  any  infant  or  insane  person  is  inter- 
ested in  the  premises,  and  has  no  guardian  within  the 
State,  the  court  assigns  him  a  guardian  for  the  suit,  to 
appear  for  him  and  defend  his  interests  therein. ^  And 
in  cases  in  which  remainders  or  estates  are  devised  or 
limited  to,  or  in  trust  for,  persons  not  in  being  at  the 
time  of  the  application  for  partition,  the  court  appoints 
a  suitable  person  to  act  as  the  next  friend  of  such  per- 
sons in  all  proceedings  touching  the  partition,  the  cost 
of  whose  services,  including  compensation  of  counsel,  is 
determined  by  the  court  and  paid  by  the  petitioner ; 
and  execution  may  be  issued  therefor  in  the  name  of 
the  person  appointed.^ 

If,  upon  the  hearing,  it  appears  that  the  partition 
prayed  for  should  be  made,  the  court  appoints  three  or 
five  disinterested  persons  as  commissioners  to  make  the 
division.^  No  clerk  or  other  person  employed  in  the 
o£5ce  of  the  probate  court  can  act  as  commissioner,  un- 
less his  appointment  is  requested  by  all  the  j^arties  in 
interest.*  If  the  estate  to  be  divided  lies  in  different 
counties,  the  judge  may,  if  he  thinks  fit,  issue  a  separate 
warrant  and  appoint  different  commissioners  for  each 
county  ;  and  the  partition  in  such  case  is  made  in  each 
county  in  like  manner  as  if  there  were  no  other  estate, 
or  the  entire  estate  may  be  divided  by  the  same  commis- 
sioners. The  warrant  states  the  name  of  each  heir  or 
devisee,  and  the  share  of  the  estate  to  which  each  is  en- 
titled. If  there  are  any  advancements  made  by  the 
deceased  to  be  considered  in  making  the  partition,  the 
names  of  the  persons  who  received  the  advancements 
and  the  sum  received  by  each  should  also  be  stated  in 
the  warrant  or  in  a  paper  appended  thereto. 

1  Gen.  Sts.  c.  136,  §  63.  2  Ibid.  §  69. 

3  Ibid.  §  49.  4  Ibid.  c.  117,  §  32. 


PARTITION   OF   LANDS.  249 

After  the  appointment  of  the  commissioners,  some 
disinterested  person  is  appointed  agent  by  the  court  for 
any  heir  at  law  or  devisee  absent  from  the  State,  to  act 
for  such  absent  heir  or  devisee  in  all  things  relating  to 
the  partition.^ 

PROCEEDINGS   OF  THE  COMMISSIONERS. 

Before  proceeding  to  make  the  partition,  the  commis- 
sioners must  make  oath  that  they  will  faithfully  and  im- 
partialh^  execute  their  duties,  and  a  certificate  of  their 
oath  should  be  made  on  the  warrant  by  the  justice  who 
administers  it. 

The  commissioners  are  required  to  give  sufficient  no- 
tice of  the  time  and  place  appointed  by  them  for  making 
the  partition  to  all  persons  interested  who  are  known  and 
are  within  the  State,  and  to  the  agent  of  any  absent 
heir  or  devisee  appointed  by  the  court.  The  notice 
should  be  in  writing  and  signed  by  the  commissioners,^ 
and  served  upon  each  of  the  persons  interested,  by  giv- 
ing him  a  copy  thereof,  or  leaving  a  copy  at  his  place  of 
abode  ;  and  a  return,  stating  the  manner  in  which  the 
service  was  made,  should  be  indorsed  by  the  officer  or 
other  person  making  it,  upon  the  original  notice.  If 
the  service  was  made  by  a  person  other  than  an  officer 
qualified  to  serve  civil  process,  the  return  should  be  ac- 
companied by  his  affidavit. 

All  the  commissioners  are  required  to  meet  for  the 
performance  of  any  of  their  duties,  but  the  acts  of  a 
majority  of  them  are  valid.^ 

At  the  time  and  place  appointed  for  making  the  par- 
tition, the  commissioners  proceed  to  appraise  all  the 
estate  to  be  divided,  and,  after  hearing  the  parties  who 

1  Gen.  St8.  c.  136,  §  60.  2  ggg  Appendix,  form  No.  75. 

3  Gen.  St8.  c.  136,  §  24. 


250      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

may  be  present,  to  make  the  partition  among  the  per- 
sons entitled  thereto,  regard  being  had  to  the  value  of 
the  advancements,  if  any,  made  by  the  deceased  in  his 
lifetime.^  The  petitioner's  share  is  not  alone  to  be  set 
off,  but  the  share  of  each  person  interested  is  to  be  as- 
signed to  him,  unless  two  or  more  of  the  parties  consent 
to  hold  their  shares  together  and  undivided.  And  the 
partition  must  embrace  the  entire  estate  when  either  of 
the  parties  interested  requires  it.  If  there  are  several 
parcels  of  land,  the  commissioners  are  not  obliged  to  set 
off  to  each  heir  a  portion  of  every  parcel,  but  they  may 
assign  to  one,  or  more,  or  all,  an  entire  parcel  each,  as 
the  situation  of  the  land  may  make  it  advisable. 

When  a  messuage,  piece  of  land,  or  other  part  of  the 
premises  is  of  greater  value  than  either  party's  share, 
and  cannot  be  divided  without  great  inconvenience  to 
the  owners,  it  may  be  set  off  to  any  one  of  the  parties 
who  will  accept  it,  he  paying  to  any  one  or  more  of  the 
others  such  sums  of  money  as  the  commissioners  award 
to  make  the  partition  just  and  equal.  In  such  an  assign- 
ment, males  are  preferred  to  females,  and,  among  chil- 
dren of  the  deceased,  elder  to  3^ounger  sons.^ 

When  such  real  estate  cannot  be  divided  without 
damage  to  the  owners,  the  whole  or  any  part  thereof 
may  be  set  off  to  one  or  more  of  the  parties  among 
whom  partition  is  ordered  to  be  made,  he  or  they  paying 
to  the  other  parties  such  sums  of  money  as  the  commis- 
sioners award.^ 

If  a  party  dies  during  the  pendency  of  the  petition, 
the  share  or  proportion  belonging  to  him  may  be  assigned 
in  the  name  of  such  deceased  person  to  his  estate,  to  be 

1  As  to  distribution  when  advancements  have  been  made,  see  ante, 
page  234. 

•i  Gen.  Sts.  c.  136,  §  57.  3  ibid.  §  58. 


PARTITION    OF   LANDS.  251 

held  and  disposed  of  in  the  same  manner  as  if  the  par- 
tition had  been  made  prior  to  his  decease.^ 

"  In  making  partition  of  lands  held  by  joint-tenants, 
coparceners,  or  tenants  in  common,  at  the  time  of  ap- 
pointing commissioners  or  subsequently,  by  agreement 
of  parties  or  after  such  notice  to  all  persons  interested 
as  shall  have  been  ordered,  the  court  may  order  the  com- 
missioners to  make  sale  and  conveyance  of  the  whole  or 
any  part  of  such  lands  as  cannot  be  advantageously  di- 
vided, upon  such  terms  and  conditions,  and  with  such 
securities  for  the  proceeds  thereof  as  the  court  may  direct 
in  such  order,  and  to  distribute  and  pay  over  the  pro- 
ceeds of  the  sale  in  such  manner  as  to  make  the  partition 
just  and  equal.  Such  sale  shall  be  at  public  auction, 
after  like  notice  required  for  the  sale  of  lands  by  admin- 
istrators, and  the  evidence  thereof  may  be  perpetuated 
in  like  manner,  by  returns  filed  with  the  clerk,  register, 
or  recording  officer  of  the  court  where  the  proceedings 
are  had.  The  conveyance  shall  be  made  by  the  commis- 
sioners, and  shall  be  conclusive  against  all  parties  to  the 
proceedings  of  partition,  and  those  claiming  by,  through, 
or  under  them. 

"  When  any  distributive  share  of  the  money  arising 
from  such  sale  remains  unpaid  at  the  time  of  confirming 
the  proceedings  or  establishing  the  partition  by  the 
courts,  the  commissioners  shall  deposit  the  same  in  such 
saving  bank  or  banks,  or  other  like  institutions  as  the 
court  may  direct,  in  the  name  of  the  judge  of  the  pro- 
bate court  for  the  county,  to  accumulate  for  the  person 
entitled  thereto,"  subject  to  the  statute  provisions  re- 
lating to  unclaimed  money  in  the  hands  of  administra- 
tors.^ 

1  Stat.  1874,  c.  266. 

«  Stat.  1871,  c.  Ill,  ante,  page  239. 


252  PROCEEDINGS   IN   THE    PROBATE   COURTS. 

EETURN    OF    THE    COIVIMISSIONERS   AND    PROCEEDmGS 
THEREON. 

The  return  of  the  commissioners  should  fully  set  forth 
their  proceedings  under  the  warrant.  The  fact  that  they 
gave  notice  to  parties  interested  of  the  time  and  place 
of  making  the  partition  should  appear  in  their  report, 
and  the  fact  that  the  persons  notified  were  present,  or 
not,  should  be  stated.  The  original  notice  to  parties, 
with  the  return  of  the  person  who  made  the  service, 
should  be  annexed  to  the  report.  Their  appraisal  of 
the  several  parcels  of  real  estate  should  be  stated  in 
words  at  length,  and  the  share  assigned  to  each  heir  or 
devisee  should  be  described  by  metes  and  bounds. 
When  a  piece  of  land  of  more  value  than  one  equal 
share  of  the  estate  is  given  to  one  of  the  heirs,  the  fact 
that  it  could  not  be  divided  without  great  inconvenience 
to  the  owners  should  be  stated,  in  terms,  in  the  return, 
and  the  sums  of  money  to  be  paid  by  such  heir  to  the 
other  owners  should  be  stated.  The  commissioners 
should  also  present  with  their  report  a  statement  of  the 
expenses,  including  their  own  compensation,  of  making 
the  partition.  The  warrant  under  which  they  acted 
must  be  returned  with  their  report. 

If  the  report  of  the  commissioners  is  satisfactory  to 
all  the  persons  interested,  they  should  certify  their  ap- 
proval thereof  in  writing  before  it  is  presented  to  the 
court ;  and  if  either  of  the  parties  is  entitled  to  a  sum 
of  money,  to  be  paid  by  one  or  more  of  the  other  par- 
ties, under  an  award  of  the  commissioners,  some  delay 
and  expense  may  be  avoided  if  his  certificate  of  the  fact 
that  the  money  has  been  paid  or  secured  to  his  satisfac- 
tion, is  returned  with  the  report ;  unless  the  parties  in- 
terested express  their  assent  to  the  establishment  of  the 


PARTITION    OP   LANDS.  253 

partition  as  made  by  the  commissioners,  notice  to  them 
will  be  ordered  before  any  decree  is  made  upon  the 
report. 

Any  party  interested  may  appear  and  object  to  the 
report  of  the  commissioners.  In  all  cases,  the  court 
may,  for  any  sufficient  reason,  set  aside  the  return  and 
commit  the  case  anew  to  the  same  or  other  commission- 
ers.^ Any  mistake,  neglect,  or  misconduct  on  the  part 
of  the  commissioners,  by  which  an  injustice  is  done  to 
either  party  interested,  would,  of  course,  be  sufficient 
reason  for  setting  aside  the  return.  And  it  is  a  valid 
objection  that  the  division  made  by  them  is  unequal  or 
inconvenient.^  The  partition  cannot  be  confirmed  by  a 
decree  of  the  court,  until  all  sums  of  money  awarded  by 
the  commissioners  to  make  the  partition  equal  are  paid 
to  the  persons  entitled  thereto,  or  secured  to  their  satis- 
faction or  that  of  the  court.  A  decree  without  such 
payment  or  security  is  erroneous,  and  will  not  establish 
the  partition.^ 

The  partition  is  made  complete  b}''  a  decree  of  the 
court  accepting  the  report  of  the  commissioners  and  as- 

1  Gen.  Sts.  c.  136,  §  74. 

2  But  as  the  committee  is  appointed  by  the  court,  and  persons  selected 
on  wliose  integrity  and  judgment  the  court  tiiinks  it  can  safely  rely,  and 
against  whom  neither  party  can  raise  any  objection,  great  confidence  is 
placed  by  the  court  in  the  report  of  the  committee;  and  it  will  not  be 
held  to  be  any  objection  to  a  report,  that  witnesses  can  be  found  who  will 
testify  that  the  division  is,  in  their  opinion,  unjust  or  inconvenient.  To 
induce  the  court  to  set  aside  the  report,  the  inequality  or  inconvenience 
must  be  clearly  and  distinctly  pointed  out,  and  shown  to  the  court  by 
clear  and  direct  evidence.  It  is  much  more  safe  to  rely  upon  the  judg- 
ment of  an  impartial  committee  than  upon  tlie  opinion  of  witnesses  se- 
lected by  the  parties.  Richardson,  C.  J.,  in  Morrill  v.  Morrill,  5  N.  H. 
329.  See  Peck  v.  Metcalf,  8  R.  I.  386 ;  Field  v.  Hanscomb,  15  Maine, 
865 ;  Wilbor  i;.  Dyer,  .39  .Maine,  169. 

«  Gen.  Sts.  c.  136,  §  71 ;  Jenks  v.  Howland,  3  Gray,  536. 


254      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

signing  to  each  of  the  parties  interested  a  share  of  the 
hind  in  severalty.^ 

Expenses  of  the  Partition.  The  expenses  and  charges 
incurred  in  making  the  partition  are  ascertained  and 
allowed  by  the  court,  and  paid  by  all  the  parties  inter- 
ested in  proportion  to  their  respective  shares  or  interests 
in  the  premises.  If  any  one  neglects  to  pay  his  part, 
an  execution  therefor  may  be  issued  against  him.^ 

Record  of  the  Partition.  The  return  of  the  commis- 
sioners, when  accepted  by  the  court,  remains  in  the  reg- 
istry of  probate ;  but  the  statute  requires  that  a  copy 
thereof,  certified  by  the  register,  shall  be  recorded  in  the 
registry  of  deeds  for  the  county  or  district  where  the 
land  lies.^ 

PROCEEDINGS  "WHEN  THE  LAND  OF  THE  DECEASED 
LIES  IN  COMMON. 

When  any  part  of  the  real  estate  of  the  deceased  lies 
in  common  and  undivided  with  that  of  another  person, 
the  probate  court  may  cause  it  to  be  divided  and  set  off 
from  the  part  held  by  such  cotenant,  before  making  par- 
tition among  the  heii's  or  others  claiming  under  the 
deceased. 

In  such  case  notice  is  given  to  the  cotenant,  contain- 
ing a  description  of  the  premises  to  be  divided,  with  a 

1  Thayer  v.  Thayer,  7  Pick.  209. 

2  Gen.  Sts.  c.  136,  §  59.  The  commissioners  are  entitled  to  compen- 
sation for  their  services  and  their  reasonable  expenses,  altliough  tlieir 
return  is  not  accepted,  or  their  charges  allowed,  by  the  probate  court,  and 
may  maintain  an  action  tlierefor  against  the  petitioners  for  partition.  A 
party  to  the  proceedings  who  has  paid  the  expenses  of  making  the  parti- 
tion is  entitled  to  contribution  from  all  the  other  parties  in  interest,  and 
may  have  the  execution  provided  for  by  statute.  Potter  v.  Hazard,  11 
AUen,  187. 

8  Gen.  Sts.  c.  136,  §  75. 


PARTITION    OF   LANDS.  255 

statement  of  the  share  or  proportion  claimed  as  belong- 
ing to  the  estate  of  the  deceased,  and  of  the  time  and 
place  appointed  for  hearing  the  case.  The  notice  is 
served  by  delivering  to  the  cotenant  an  attested  copy, 
or  tjy  leaving  such  copy  at  his  place  of  abode  in  this 
State,  fourteen  days  at  least  before  the  time  appointed 
for  the  hearing. 

If  it  appears  in  any  stage  of  the  proceedings  that  any 
person  interested  in  the  premises,  other  than  the  heirs 
and  devisees  of  the  deceased  and  those  claiming  under 
them,  was  absent  from  the  State  when  the  notice  was 
served,  and  has  not  returned,  the  probate  court  either 
dismisses  the  aj^plication  for  partition,  or  stays  further 
proceedings  until  such  absent  party  appears  and  answers, 
or  signifies  in  writing  his  assent  to  the  proposed  parti- 
tion.^ 

UPON   WHOM   THE   PARTITION   IS   BINDING. 

The  partition,  when  finally  confirmed  and  established, 
is  conclusive  on  all  the  heirs  and  devisees  of  the  de- 
ceased, and  all  persons  claiming  under  them  ;  on  all 
other  persons  interested  in  the  premises  who  appeared 
and  answered  in  the  case,  or  assented  to  the  proposed 
partition  as  above  mentioned ;  and  on  every  person  so 
interested  on  whom  notice  was  served  by  delivering  him 
a  copy  thereof,  or  by  leaving  it  at  the  place  of  his  abode 
at  a  time  when  he  was  within  the  State.  And  on  per- 
sons not  in  being  at  the  time  of  the  petition,  if  notice 
was  duly  given  to  their  parents  and  they  were  repre- 
sented in  the  proceedings  for  partition.^ 

1  Gen.  Sts.  c.  136,  §§  01-63.  z  Ibid.  §§  64,  69. 


256  PROCEEDINGS   IN   THE    PROBATE    COURTS. 

PARTITION   OF    LANDS    HELD    BY   THE   EXECUTOR,   &C., 
IN  MORTGAGE   AND   ON   EXECUTION. 

Partition  may  also  be  made  in  tlie  probate  court  of 
land  held  by  an  executor  or  administrator  in  mortgage, 
or  on  execution,  if  it  is  not  redeemed,  or  sold  by  him 
for  the  payment  of  debts. ^  Land  so  held  is  always 
treated  in  the  settlement  of  estates  as  personal  property, 
the  title  to  which  is  vested  in  the  administrator  and  not 
in  the  heirs,  and  is  distributed  to  the  same  persons  and 
in  the  fsame  proportions  as  if  it  had  been  part  of  the  per- 
sonal estate  of  the  deceased.  The  widow  of  an  intestate 
is  entitled  to  one-third,  not  as  dower,  but  absolutely ; 
and  other  jjersons  interested  take  under  the  statute  of 
distributions,^  not  according  to  the  rules  of  descent  of 
real  estate.  The  form  of  proceeding  in  the  probate 
court  is  the  same  as  in  cases  of  partition  of  land  held  by 
the  deceased  in  his  lifetime.  The  petition  for  the  parti- 
tion should  set  forth  the  fact  that  the  land  is  held  by  the 
administrator  in  mortgage,  or  on  execution,  as  the  case 
may  be  ;  and  the  names  of  the  persons  entitled  to  share 
in  the  distribution,  and  their  relationship  to  the  deceased, 
should  also  be  stated.  It  is  only  by  a  decree  of  the 
probate  court  that  the  title  of  the  administrator  is  deter- 
mined, and  such  decree  for  the  assignment  and  distribu- 
tion of  the  estate  is  necessary  to  determine  in  whom  and 
in  what  proportions  the  estate  shall  vest.^ 

1  Gen.  Sts.  c.  96,  §  14.  2  Ibid. 

8  Taft  V.  Stevens,  3  Gray,  504 ;  Richardson  v.  Hildreth,  8  Gush.  225. 


CHAPTER   XVIII. 

ASSIGNIMENT   OF  DOWEK   AND   OTHER   LIFE-ESTATES. 
WHEN   THE   PROBATE   COURT   MAY   ASSIGN  DOWER. 

The  statute  provides  that  "every  woman  shall  be 
entitled  to  her  dower  at  common  law  in  the  lands  of 
her  husband,  to  be  assigned  to  her  after  his  decease,  un- 
less she  is  lawfully  barred  thereof  ;  "  and  that  "  when  a 
widow  is  entitled  to  dower  in  lands  of  which  her  hus- 
•band  died  seised^  and  her  right  is  not  disputed  by  the 
heirs  or  devisees,  it  may  be  assigned  to  her,  in  whatever 
counties  the  lands  lie,  by  the  probate  court  for  the 
county  in  which  the  estate  of  the  husband  is  settled."  ^ 

The  assignment  of  dower  is  not  incident  to  the  admin- 
istration of  estates  of  deceased  persons,  nor  is  it  analo- 
gous to  any  proceeding  of  the  probate  court  as  a  court 
of  ecclesiastical  jurisdiction.  The  probate  court,  there- 
fore, assigns  dower  only  in  the  cases  in  which  jurisdic- 
tion is  expressly  given  by  statute.  If  the  husband  did 
not  die  seised  of  the  land,  or  if  the  widow's  right  is  dis- 
puted by  the  heirs  or  devisees,^  the  probate  court  cannot 

»  Gen.  Sts.  c.  90,  §§  1,  3. 

2  Lazell  V.  Lazell,  8  Allen,  575;  Woodward  v.  Lincoln,  9  Allen,  241 ; 
Mercier  v.  Cliace,  Ibid.  242 ;  French  v.  Crosby,  23  INIe.  27G. 

Dower  may  be  assigned  by  the  heirs,  without  any  order  of  court  and 
without  a  deed,  it  not  being  a  conveyance  of  title.  The  widow  holds  her 
estate  by  law  and  not  by  contract,  and  requires  nothing  but  to  have  her 
part  distinguished  from  the  rest  of  the  land.     Conant  v.  Little,  1  Pick. 

17 


258      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

make  the  assignment,  and  she  must  pursue  her  remedy 
in  the  common-hxw  courts.  Interesting  questions  as  to 
the  sufficiency  of  the  husband's  seisin,  and  as  to  the 
effect  of  the  wife's  acts  in  release  of  her  dower,  are 
raised  in  cases  where  the  hmd  in  which  dower  is  chiimed 
was  conveyed  by  the  husband  during  his  lifetime,  but 
cases  involving  such  questions  are  not  within  the  juris- 
diction of  the  probate  court. 

THE   ESTATE   OF   DOWER. 

Dower  at  common  law  exists  where  a  man  is  seised  of 
an  estate  of  inheritance  and  dies  in  the  lifetime  of  his 
wife.  In  that  case,  she  is  entitled  to  be  endowed  for 
her  natural  life  of  all  the  lands  of  which  her  husband 
was  seised,  either  in  deed  or  in  law,  at  any  time  during 
the  coverture,  and  of  which  any  issue  that  she  might 
have  had  might  by  possibility  have  been  heir.^  Her 
right  is  so  protected  by  law  that  no  act  of  the  husband 
can  deprive  her  of  it.  And  she  is  entitled  to  her  dower, 
though  her  husband  dies  insolvent. 

To  establish  a  claim  to  dower  at  common  law,  it  must 
be  shown  that  there  was  a  marriage,  and  a  seisin  by  the 
husband  at  some  time  during  the  coverture,  and  that 
the  husband  is  dead.  Without  the  concurrence  of  these 
three  circumstances,  no  title  to  dower  can  be  consum- 
mated. To  enable  the  probate  court  to  assign  dower, 
it  must  further  appear  that  the  husband  was  seised  at 
the  time  of  his  death. 

189 ;  Shattuck  v.  Gregg,  23  Pick.  88.  A  guardian  may  assign  dower  in 
his  ward's  estate  to  any  widow  entitled  thereto.     Gen.  Sts.  c.  109,  §  20. 

The  widow  may  occupy  the  land  jointly  with  the  heirs,  or  may  re- 
ceive one  third  of  the  rents  and  profits,  so  long  as  the  heirs  do  not  object, 
without  having  her  dower  assigned.     Gen.  Sts.  c.  90,  §  7. 

1  4  Kent,  Cora.  35. 


ASSIGNMENT   OF   DOWER   AND    OTHER   LIFE-ESTATES.      259 

Dower  attaches  to  all  marriages  not  absolutely  void 
and  existing  at  the  death  of  the  husband.  Though  the 
marriage  was  voidable,  if  it  was  not  annulled  bv  decree 
during  the  husband's  lifetime,  the  widow  will  take  her 
dower.  Dower  belongs  to  a  marriage  within  the  age  of 
consent,  though  the  husband  dies  within  that  age.^  A 
divorce  from  bed  and  board  does  not  bar  the  wife's  right 
of  dower,  but  her  right  is  barred  by  a  divorce  from  the 
bond  of  matrimony  in  all  eases,  except  when  the  divorce 
was  decreed  on  account  of  the  adultery  or  imprisonment 
of  the  husband.^ 

OF   "WHAT   LANDS   THE   WIDOW   IS   DOWABLE. 

A%  to  Wild  Lands.  A  widow  is  not  entitled  under  the 
statute  to  dower  in  wild  lands  of  which  her  husband 
dies  seised,  but  she  is  entitled  to  dower  in  any  wood-lot, 
or  other  land  used  with  the  farm  or  dwelling-house, 
although  such  wood-lot  or  other  land  has  never  been 
cleared.^  Her  right  in  such  land  is  limited  to  wood  and 
timber  used  and  consumed  on  the  estate,  and  for  pur- 
poses connected  with  its  proper  use,  occupation,  and 
enjoyment.^ 

Mines  and  Quarries.     A  widow  is  entitled  to  dower 

1  4  Kent.  Com.  37.  But  if  the  parties  separate  during  such  nonage, 
and  do  not  afterwards  cohabit,  the  marriage  will  be  void  without  a  de- 
cree of  divorce  or  other  legal  process.     Gen.  Sts.  c.  107,  §  3. 

■^  Ibid.  §  .38.  In  this  State  a  woman  is  not  barred  of  her  right  to 
dower  merely  by  leaving  her  husband  and  living  with  an  adulterer. 
Lakin  i>.  Lakin,  2  Allen,  45. 

3  Gen.  Sts.  c.  90,  §  12. 

*  White  V.  Cutler,  17  Pick.  248  ;  White  v.  Willis,  7  Pick.  143.  When 
it  appears  that  the  wood  and  timber  have  ceased  to  improve  by  growth, 
or  for  any  cause  ought  to  be  cut,  the  probate  court  may  appoint  a  trus- 
tee and  authorize  him  to  sell  it,  invest  the  proceeds,  and  pay  to  the  widow 
the  income  thereof  during  her  life,  and  at  her  death  to  pay  the  principal 
sum  to  the  owner  of  the  land.     Stat.  1809,  c.  249. 


260      PROCEEniXGS  IN  THE  PROBATE  COURTS. 

in  such  mines  and  quarries  as  were  actually  opened  and 
used  during  the  lifetime  of  the  husband,  whether  he  con- 
tinued to  work  them  to  the  period  of  his  death  or  not.^ 
A  bed  of  iron  ore  of  considerable  extent  is  regarded  as 
opened,  although  the  openings  which  had  been  wrought 
by  the  husband  had  been  partially  filled  up  and  aban- 
doned, and  other  openings  into  the  same  bed  had  been 
made  by  the  heirs.^  The  tenant  in  dower  may  work 
an  open  mine  or  quarry  for  her  own  benefit,  but  it  is 
waste  for  her  to  open  and  work  it. 

Lands  of  Tenants  in  Common.  A  widow  is  entitled 
to  dower  in  lands  owned  by  her  husband  as  tenant  in 
common  with  other  persons.  But  land  purchased  by 
partners,  with  partnership  funds,  for  partnership  pur- 
poses, is  considered  in  equity  as  partnership  stock. 
Though  conveyed  to  them  as  tenants  in  common,  it  vests 
in  them  and  their  respective  heirs  in  trust  for  the  pur- 
poses of  the  partnership,  and  is  to  be  applied,  if  neces- 
sary, towards  payment  of  the  partnership  debts.  If  so 
required  for  the  payment  of  debts,  the  widows  of  part- 
ners are  not  entitled  to  dower  in  such  land.^ 

If  the  land,  though  purchased  with  partnership  funds, 
was  purchased  in  such  a  manner  as  to  preclude  such  im- 
plied  trust,  the  widow  will   be  entitled  to  her  dower 

1  Stoughton  V.  Leigh,  1  Taunt.  402. 

-  Coates  V.  Cheever,  1  Cowen,  460.  A  husband  died  seised  of  four 
acres  of  land  consisting  of  a  slate  quarry,  mostly  below  the  surface  of 
the  ground,  but  partially  above  ground.  One  quarter  of  an  acre  of  the 
quarry  had  been  dug  over,  and  the  practice  was  to  take  a  section  of  ten 
or  twelve  feet  square  on  the  surface,  and  go  down  to  a  certain  depth,  and 
then  begin  on  the  surface  again.  Held,  that  not  only  that  portion  of  the 
quarry  which  had  been  actually  dug,  but  the  whole  extent  owned  by  the 
husband,  must  be  considered  as  opened,  and  so  the  widow  was  entitled  to 
dower  in  the  same.     Billings  v.  Taylor,  10  Pick.  460. 

3  Dyer  v.  Clark,  5  Met.  562 ;  Howard  v.  Priest,  Ibid.  582 ;  Bumside 
V.  Merrick,  4  Met.  537. 


ASSIGNMENT   OF   DOWER   AND   OTHER   LIFE-ESTATES.      261 

therein.  This  may  be  the  case  when  there  is  an  express 
agreement  at  the  time  of  the  purchase  that  the  property 
is  to  be  held  by  the  partners  separately  for  their  separate 
use,  or  a  similar  provision  in  the  articles  of  copartner- 
ship, or  where  the  price  of  the  purchase  is  charged  to 
the  partners  respectively,  in  their  several  accounts  with 
the  firm.i 

Lands  incumbered  by  Mortgage.  A  widow  is  not  en- 
titled to  dower  at  common  law  in  estates  of  which  her 
husband  is  only  equitably  seised.  But  our  statute  ex- 
tends her  right  of  dower  to  equities  of  redemption  of 
mortgaged  estates.  If  she  has  released  her  right  of 
dower  upon  a  mortgage  made  by  her  husband,  or  if  he 
is  seised  of  land  subject  to  a  mortgage  which  is  valid 
and  effectual  as  against  her,  she  is  nevertheless  entitled 
to  dower  in  the  mortgaged  premises  as  against  every 
person  except  the  mortgagee  and  those  claiming  under 
him.  If  the  heir  or  other  person  claiming  under  the 
husband  redeems  the  mortgage,  the  widow  can  either 
repay  such  part  of  the  money  paid  by  him  as  is  equal 
to  the  proportion  which  her  interest  in  the  mortgaged 
premises  bears  to  the  whole  value  thereof,  or  she  can  at 
her  election  take  dower  only  according  to  the  value  of 
the  estate  after  deducting  the  money  paid  for  redemp- 
tion.^ 

Applications  for  dower  in  mortgaged  lands  are  not 
usually  made  to  the  probate  court,  although  that  court 
may  assign  dower  in  such  lands  when  all  the  parties  in- 
terested consent.  The  legal  estate  is  in  the  mortgagee  ; 
but  as  the  mortgage  is  intended  only  as  security  for  a 
debt,  it  is  considered  as  between  the  mortgagor  and  all 
the  world  except  the  mortgagee  and  his  assigns  only  as 
a  pledge  and  an  incumbrance,  the  mortgagor  still  re- 

1  Dyer  v.  Clark,  6  Met.  679.  2  Qen.  Sts.  c.  90,  §  2. 


262      PROCEEDINGS  IN  THE  PROBATE  COURTS, 

maining  the  owner  of  the  estate.  If,  therefore,  the  heirs 
or  devisees  do  not  dispute  the  widow's  chiim,  and  the 
mortgagee  consents,  the  probate  court  ma}'  assign  dower 
in  the  whole  estate  mortgaged,  and  the  assignment  will 
be  valid,  although  the  widow  joined  her  husband  in  the 
mortgage-deed  for  the  purpose  of  relinquishing  her 
dower.i  But  if  the  mortgagee  does  not  consent,  an  as- 
signment by  the  probate  court  will  be  invalid  as  against 
him,  although  the  widow  has  never  released  her  dower.^ 
Leased  Lands.  When  land  is  demised  for  the  term 
of  one  hundred  years  or  more,  the  term,  so  long  as  fifty 
years  thereof  remain  unexpired,  is  regarded  by  the  stat- 
ute as  an  estate  in  fee-simple,  as  to  every  thing  concern- 
ing' the  right  of  dower  therein,  and  the  estate  in  lieu  of 
dower.^  When  dower,  or  an  estate  in  lieu  of  dower  is 
assigned  out  of  such  land,  the  widow  and  her  assignee 
is  held  to  pay  to  the  owner  of  the  unexpired  residue  of 
the  term,  in  case  of  dower,  one-third,  and  in  case  of  an 
estate  in  lieu  of  dower,  one-half,  of  the  rent  reserved  in 
the  lease.* 


DOWER,    WHEN    THE    WIDOW    WAIVES    THE    PROVISION 
MADE   FOR   HER    BY   WILL. 

A  widow  may  have  dower  in  her  husband's  lands,  al- 
though they  may  have  been  disposed  of  by  his  will. 
The  statute  provides,  that  "  when  a  man  dies  having 
lawfully  disposed  of  his  estate  by  will,  and  leaving  a 
widow,  she  may  at  any  time  within  six  months  after  the 
probate  of  the  will,  file  in  the  probate  office  in  writing 
her  waiver  of  the  provisions  made  for  her  in  the  will ; 

1  Henry's  case,  4  Cush.  257  ;  Draper  v.  Baker,  12  Cush.  288. 

2  Raynham  v.  Wilmartb,  13  Met.  414. 

3  Gen.  Sts.  c.  90,  §  20.  ■*  Ibid.  §  22. 


ASSIGNMENT   OF   DOWER    AND    OTHER   LIFE-ESTATES.      263 

and  shall  in  such  case  be  entitled  to  such  portion  of  his 
real  and  personal  estate  as  she  would  have  been  entitled 
to  if  her  husband  had  died  intestate.  ...  If  she  makes 
no  such  waiver,  she  shall  not  be  endowed  of  his  lands, 
unless  it  plainly  appears  by  the  will  to  have  been  the 
intention  of  the  testator  that  she  should  have  such  pro- 
visions in  addition  to  her  dower."  ^  And  if  no  provision 
is  made  for  her,  she  may  waive  the  provisions  of  the  will 
with  like  effect.^ 

At  common  law,  a  devise  or  bequest  to  the  wife  of 
a  testator  was  presumed  to  be  in  addition  to  her  dower, 
unless  it  was  clearly  the  testator's  intention  that  it 
should  be  in  lieu  of  dower;  but  our  statute  reverses 
this  presumption,  and  the  provision  made  for  the  widow 
by  the  will  is  deemed  to  be  in  lieu  of  dower,  unless  it 
plainly  ajDpears  that  the  testator  intended  such  provision 
to  be  in  addition  to  her  dower.  It  is,  therefore,  for  the 
demandant,  if  she  claims  both,  to  make  it  plainly  appear 
by  the  will  that,  in  addition  to  the  provision  therein 
made  for  her,  she  is  entitled  to  dower  ;  and  if  the  testa- 
tor's intention  is  left  in  doubt,  she  cannot  take  dower 
unless  she  first  w^aives  the  provision  made  for  her  in  the 
will.^  The  inadequacy  of  the  provision  merely  will  not 
justify  the  inference  that  it  was  intended  to  be  in  addi- 

1  Stat.  18G1,  c.  164.  Tlie  right  given  to  the  widow  to  waive  tiie  pro- 
visions of  iier  husband's  will  is  a  personal  riglit,  and  does  not  pass  to  her 
representatives  tliough  she  die  before  probate  of  her  husband's  will. 
Sherman  v.  Newton,  6  Gray,  307. 

2  Stat  1871,  c.  200. 

^  Adams  v.  Adams,  6  Met.  278.  Wliere  a  testator  devised  specific 
parts  of  liis  real  estate  to  liis  wife  in  fee,  and  bequeathed  to  iier  all  his 
personal  property,  and  ordered  that  the  other  part  of  his  real  estnte 
should  \)e  disf)osed  of  as  the  law  directs,  and  the  wife  accepted  tlie  devise 
and  bequest  made  to  her ;  it  was  held  that  she  was  not  entitleil  to  dower 
in  such  other  part  of  the  real  estate.  Ibi<l. ;  and  see  Reed  v.  Dickerman, 
12  rick.  140. 


264      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

tion   to  dower.     The  question  must  be  determined  by 
the  language  of  tlie  will. 

The  widow  may  make  her  election  to  take  her  dower 
effectual  by  filing  in  the  probate  office,  in  writing,  at 
any  time  within  six  months  after  the  probate  of  the  will, 
her  waiver  of  the  provisions  made  for  her.^  When  any 
legal  proceeding  is  instituted,  wherein  the  validity  or 
effect  of  the  will  is  drawn  in  question,  the  probate  court 
may,  within  six  months  after  probate  of  the  will,  on  pe- 
tition of  the  widow  and  after  notice,  authorize  her  to  file 
her  waiver  within  six  months  after  the  final  determina- 
tion of  such  proceeding.^  If  she  is  insane  or  a  minor, 
her  guardian  may  make  the  waiver.^  If  she  makes  no 
such  waiver,  she  cannot  take  dower,  unless  it  plainly 
appears  from  the  will  that  the  testator  intended  that 
she  should  have  such  provisions  in  addition  to  her 
dower. 

DOWER   BARRED   BY   JOINTURE   OR   PECUNIARY  PRO- 
VISION. 

A  woman  may  be  barred  of  her  dower  by  a  jointure 
settled  on  her,  with  her  assent,  before  her  marriage  ; 
provided,  such  jointure  consist  of  a  freehold  estate  in 
lands  for  the  life  of  the  wife  at  least,  to  take  effect  in 
possession  or  profit  immediately  on  the  death  of  the 
husband  ;  her  assent  to  such  jointure  being  expressed, 
if  she  is  of  full  age,  by  her  becoming  a  party  to  the  con- 
veyance by  which  it  is  settled,  and,  if  she  is  under  age, 
by  her  joining  with  her  father  or  guardian  in  such  con- 
veyance. Any  pecuniary  provision  made  for  the  benefit 
of  an  intended  wife,  and  in  lieu  of  dower,  if  so  assented 
to,  will  bar  her  right  of  dower  in  her  husband's  lands. 

1  See  Appendix,  form  No.  76.  2  stat.  1873,  c.  58. 

3  Stat.  1871,  c.  97. 


ASSIGNMENT   OP   DOWER    AND    OTHER  LIFE-ESTATES.      265 

If  such  jointure  or  pecuniary  provision  is  made  before 
the  marriage,  and  without  the  assent  of  the  intended 
wife,  or  if  it  is  made  after  marriage,  it  will  bar  her 
dower,  unless  within  six  months  after  the  death  of  her 
husband  she  makes  her  election  to  waive  such  provision 
and  be  endowed  of  his  lands.  If  the  husband  dies  while 
absent  from  his  wife,  she  may  make  her  election  within 
six  months  after  notice  of  his  death,  and  in  all  cases  she 
has  six  months  for  that  purpose,  after  she  has  notice  of 
the  existence  of  such  jointure  or  provision.^ 

No  provision  is  made  by  statute  as  to  the  manner  in 
which  the  widow  may  signify  her  election  in  such  cases, 
but  she  can  make  her  election  effectual  by  commencing 
proceedings  for  the  recovery  of  her  dower,  by  petition 
or  otherwise,  within  the  six  months. 

WITHIN  WHAT   TIME   DOWER   MUST   BE   CLAIMED. 

The  statute  provides  that  after  the  eighteenth  day  of 
March,  in  the  year  1863,  widows  shall  not  be  entitled 
to  make  claim  or  commence  any  proceeding  for  the  re- 
covery of  dower,  unless  the  same  is  made  or  commenced 
within  twenty  years  from  the  decease  of  the  husband  ; 
except  that  if  at  the  time  of  the  husband's  death  the 
widow  is  absent  from  the  State,  under  twenty-one  years 
of  age,  insane,  or  imprisoned,  she  may  commence  pro- 
ceedings at  any  time  within  twenty  years  after  such 
disability  ceases.^ 

PROCEEDINGS  IN  PROBATE  COURT. 

The  petition  for  the  assignment  of  dower  must  be 
presented   to  the  probate  court  in  which  the  estate  of 

»  Gen.  Sts.  c.  90,  §§  9-11;  Vincent  v.  Spooner,  2  Gush.  467. 
2  Ibid.  §  6. 


266      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

the  husband  is  settled,  and  should  set  forth  the  facts 
that  the  husband  died  seised  of  certain  lands  in  this 
Commonwealth,  that  the  petitioner  is  entitled  to  dower 
in  such  land,  and  that  her  right  is  not  disputed  by  the 
heirs  or  devisees.  The  names  and  residences  of  all  per- 
sons interested  in  the  lands  must  be  stated  in  the  peti- 
tion. If  any  of  the  persons  interested  are  married 
women,  the  names  of  their  husbands  should  be  given  ; 
and  if  any  are  minors  the  names  and  residences  of  their 
guardians. 

If  the  widow  omits  to  petition  or  demand  her  dower 
within  one  year -from  the  death  of  her  husband,  the  peti- 
tion may  be  made  by  the  heirs  or  devisees  of  her  hus- 
band, or  any  of  them,  or  by  any  person  having  any 
estate  in  the  lands  subject  to  dower,  or  by  the  guardian  of 
any  such  heirs,  devisees,  or  persons  having  said  estate."  ^ 

The  petition  may  be  filed  in  the  probate  office  on  any 
day,  and  a  citation  thereon  issued  by  the  register. 

If  any  part  of  the  land  in  which  dower  is  claimed  was 
owned  by  the  husband  in  common  with  any  other  per- 
son, a  description  of  such  land  should  be  annexed  to  the 
petition,  and  the  proportion  owned  by  the  husband,  and 
the  names  of  the  cotenants,  must  be  stated.  The  peti- 
tion may  be  made  by  the  widow  or  by  any  person  enti- 
tled to  petition  for  assignment  of  dower.^  The  citation 
issued  in  such  cases  must  be  served  on  each  of  the  co- 
tenants,  together  with  a  copy  of  the  description  of  the 
land  annexed  to  the  petition. 

If  upon  the  hearing  it  appears  that  the  husband  died 
seised  of  the  land  in  which  dower  is  claimed,  and  that 
the  riglit  of  the  widow  is  not  disputed  by  the  heirs  or 
devisees,  the  court  issues  a  warrant  to  three  discreet 
and  disinterested  persons,  authorizing  them  to  set  off 
1  Stat.  1876,  c.  89.  2  ibid. 


ASSIGNMENT   OP    DOWER    AND    OTHER   LIFE-ESTATES.      267 

the  dower,  and  empowering  them,  if  the  circamstances 
of  the  case  require  it,  first  to  make  partition  of  any  land 
owned  by  the  husband  as  tenant  in  common. 


PKOCEEDINGS   OF   THE   COMMISSIONERS. 

Before  proceeding  to  set  off  the  dower,  or  to  make  par- 
tition, the  commissioners  must  be  sworn  to  perform  their 
duty  faithfully  and  impartially  according  to  their  best 
skill  and  judgment.  The  oath  may  be  administered  by 
any  justice  of  the  peace,  and  a  certificate  thereof  should 
be  made  upon  the  warrant. 

If  partition  is  to  be  made  before  the  dower  can  be  as- 
signed, the  commissioners  must  give  notice,  as  in  other 
cases  of  partition,^  of  the  time  and  place  appointed  for 
that  purpose  to  all  persons  interested  who  are  known 
and  are  within  the  State,  that  they  may  be  present  if 
they  see  fit. 

If  the  commissioners  are  to  assign  dower  only,  and 
there  is  no  partition  to  be  made,  they  are  not  required 
by  statute  to  give  notice  to  parties  interested,  but  it  is 
advisable  to  give  such  notice  in  all  cases  of  assignments 
of  interests  in  real  estate.^ 

In  making  the  assignment,  all  the  lands  of  which  the 
husband  died  seised  are  first  to  be  appraised  by  the 
commissioners  at  their  present  value.  The  authority  of 
the  commissioners  extends  to  all  lands  of  which  the  hus- 
band died  seised  within  the  Commonwealth.  The  lands 
should  be  appraised  with  reference  to  the  amount  of  an- 
nual income  they  produce  ;  it  not  being  the  object  of 
the  law  to  assign  the  widow  one-third  of  the  land  in 
quantity,  but  to  give  her  such  a  part  as  will  yield  her 
one-third  of  its  entire  income.^ 

1  See  Appendix,  form  No.  75.  ^  gpg  Appendix,  form  No.  77. 

8  Conner  v.  Slieplierd,  10  Mass.  107  ;  Leonard  v.  Leonard,  1  Mass.  633. 


268      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

The  third  assigned  to  the  widow  must  be  set  off  by 
metes  and  bourids,  where  it  can  be  done  without  damage 
to  the  whole  estate.  But  where  the  estate  consists  of 
a  mill  or  other  tenement  which  cannot  be  divided  with- 
out damage  to  the  whole,  the  dower  may  be  assigned  of 
the  rents,  issues,  or  profits  thereof,  to  be  had  and  re- 
ceived by  the  widow  as  a  tenant  in  common  with  the 
other  owners  of  the  estate.^  The  widow  in  such  case 
may  have  her  dower  in  an  alternate  occupancy  of  the 
whole  estate,  or  a  third  of  the  rents  and  profits.  The 
ancient  rule  gave  her  every  third  toll-dish  for  her  dower 
in  a  mill,  or  the  use  of  the  whole  mill  every  third  month 
or  year.  It  is  not  material  in  what  way  the  result  is 
reached,  provided  the  rights  of  the  parties  are  plainly 
defined  and  established.  Assignments  of  this  kind  are 
usually  made  by  agreement  between  the  parties ;  a 
proper  spirit  of  accommodation  will  enable  them  to 
reach  an  adjustment  more  satisfactory  to  themselves 
than  any  action  of  the  commissioners  is  likely  to  prove. 

If  the  entire  estate  in  which  dower  is  claimed  consists 
of  a  dwelling-house,  certain  rooms  in  the  house,  with 
the  right  of  using  the  stairways,  halls,  &c.,  may  be  set 
off  to  the  widow.  But  the  part  of  the  premises  so  as- 
signed to  her  must  be  sufficient  for  her  substantial 
enjoyment  of  the  third  part  of  the  estate.^  It  seems 
that  at  common  law  the  widow  is  not  compelled  to  take 
dower  so  assigned,  but  may  claim  a  rent  issuing  out  of 
the  estate.^  But  the  practice  has  the  sanction  of  long 
usage  in  this  State. 

1  Gen.  Sts.  c.  90,  §  5. 

-  In  Howard  v.  Candisli  (Palmer,  264),  the  sheriff  assigned  to  the 
widow  a  tliird  part  of  eacli  chamber,  and  chalked  out  her  part ;  this  was 
held  to  be  an  idle  and  malicious  assignment,  and  the  sheriff  was  commit- 
ted to  prison. 

3  While  V.  Story,  2  Hill  (N.  Y.),  643;  Park  on  Dower,  254. 


ASSIGNMENT   OF   DOWER   AND    OTHER   LIFE-ESTATES.      269 

The  return  of  the  commissioners  to  the  probate  court 
should  give  a  detailed  report  of  their  proceedings  under 
the  warrant  directed  to  them.  The  fact  that  notice  was 
given  to  persons  interested,  and  the  manner  in  which  it 
was  given,  should  be  stated.  If  the  parties  notified  were 
present  at  the  time  and  place  appointed  for  making  the 
partition  or  assignment,  the  fact  should  appear  in  the 
return.  The  sums  at  which  the  several  parcels  of  land 
belonging  to  the  estate  were  appraised  should  be  ex- 
pressed in  words  at  length ;  and  if  the  dower  is  set  off 
by  metes  and  bounds,  the  boundaries  should  be  so  de- 
scribed as  to  leave  no  uncertainty  as  to  the  portion 
assigned. 

The  assent  of  all  parties  in  interest  to  the  assignment 
as  made  by  the  commissioners  should  be  indorsed  on 
the  return  ;  otherwise  a  citation  will  issue  to  them  be- 
fore final  action  is  had.  The  assignment  of  dower  is 
made  complete  by  the  confirmation  by  the  court  ^  of  the 
return  of  the  commissioners,  and  its  record  in  the  pro- 
bate ojffice.  In  cases  where  the  husband  was  a  cotenant, 
and  partition  was  made  previous  to  the  assignment  of 
dower,  the  return  should  also  be  recorded  in  the  registry 
of  deeds  for  the  county  in  which  the  land  lies. 

WHEN   WIDOWS    MAY   BE   ENDOWED   ANEW. 

"  If  a  woman  is  lawfully  evicted  of  lands  assigned  to 
her  as  dower  or  settled  upon  her  as  jointure,  or  is  de- 
prived of  the  provision  made  for  her  by  will  or  other- 
wise in  lieu  of  dower,  she  may  be  endowed  anew  in  like 
manner  as  if  such  assignment,  jointure,  or  other  provi- 

1  Thie  confirmation  relates  back  to  the  time  of  the  assignment.  Parker 
V.  Parker,  17  Pick.  236  ;  Mansfield  v.  Pembroke,  5  Pick.  44'J. 


270      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

sion,  had  not  been  made ; "  ^  as,  when  she  has  been  en- 
dowed of  lands  mortgaged  by  her  husband  before  his 
marriage,  and  has  been  evicted  by  the  mortgagee.^ 

A  widow  is  "  deprived  of  the  provision  made  for  her 
by  will,"  within  the  meaning  of  the  statute^  when  all 
her  husband's  estate  is  taken  for  the  payment  of  his 
debts ;  as,  where  the  husband  gave  his  wife  by  will  the 
whole  of  his  estate,  on  condition  that  she  should  pay  his 
debts  and  legacies,  and  the  estate  proved  to  be  insolvent. 
She  is  entitled,  in  such  case,  to  her  dower,  although  she 
may  not  have  foi-mally  waived  the  provision  made  for 
her  by  will,  the  provision  made  for  her  having  wholly 
failed.  But  before  dower  can  be  assigned  to  her,  it 
must  be  ascertained  that  the  whole  estate,  estimating 
its  value  without  the  incumbrance  of  the  widow's 
dower,  is  not  sufficient  to  discharge  the  liabilities.^ 
And  it  is  no  objection,  in  such  case,  to  an  application 
for  an  assignment  of  dower,  that  a  previous  application 
had  been  made  and  refused  before  there  was  sufficient 
evidence  that  the  widow  would  be  deprived  of  the  pro- 
vision made  by  the  will,  and  that  she  did  not  appeal 
from  the  decree  of  refusal.^ 


PKESENT   VALUE   OF   DOWER   ESTATES. 

The  following  table  affords  a  ready  means  of  deter- 
mining the  present  value  of  dower  estates.  The  table 
is  deduced  from  the  Wigglesworth  and  "  Combined 
Experience "  tables  of  mortality.  The  Wigglesworth 
tables  were  adopted  many  years  ago  by  the  supreme 
judicial  court,  but  the  more  recently  prepared  tables, 

1  Gen.  Sts.  c.  90,  §  13.  «  Scott  v.  Hancock,  13  Mass.  168. 

8  Thompson  v.  McGaw,  1  Met.  66.  *  Ibid. 


ASSIGNMENT   OF    DOWER   AND    OTHER   LIFE-ESTATES.      271 

founded  on  the  combined  experience  of  various  life- 
insurance  companies,  exhibit  the  results  of  a  more 
extended  observation,  and  are  practically  safer  in  de- 
termining the  value  of  life-estates. 

To  determine  the  present  value  of  a  dower  estate, 
find  in  the  column  of  age,  in  the  following  table,  the 
age  of  the  person  to  whom  the  dower  estate  belongs. 
The  sums  named  opposite  the  number  representing  the 
age  will  show  the  present  value  of  every  $100  of  the 
dower  estate,  according  to  the  Wigglesworth  and  "  Com- 
bined Experience  "  tables  respectively.  Multiply  that 
present  value  by  the  number  of  hundreds  in  the  entire 
estate,  and  the  product  will  be  the  present  value  of  the 
dower  estate.     For  example  :  — 

Suppose  a  widow  whose  age  is  30,  is  entitled  to  dower 
in  an  estate  worth  ^6,000 :  opposite  the  number  30,  repre- 
senting the  age,  is  the  sum  $23.59 ;  multiply  that  sum 
by  60  (the  number  of  hundreds  in  6,000),  and  the  pro- 
duct is  $1415.40,  which  is  the  present  value  of  her  dower 
according  to  the  "Wigglesworth  tables.  According  to  the 
"  Combined  Experience  "  tables  it  is  $1581.00. 


272 


PROCEEDINGS   IN   THE   PROBATE   COURTS. 


TABLE 

Shoicing  the  present  value  of  a  widow's  dower  in  an  estate  worth  $100,  at  any 
age  from  15  to  98  inclusive,  computed  at  six  per  cent,  according  to  the  Wiggles- 
worth  and  "  C<ymbined  Experience "  Tables  of  Mortality. 


WlgRles- 

Combined 

wiggles- 

Combined 

Age. 

Wiggles- 

Combined 

Age. 

worth. 

Experience. 

Age. 

worth. 

Experience. 

worth. 

Experience, 

16 

$24.71 

$28.30 

43 

$22.30 

$23.22 

71 

$12.45 

$10.87 

16 

24.63 

28.20 

44 

22  21 

22.90 

72 

11.98 

10.40 

17 

24.56 

28.11 

46 

22.10 

22.56 

73 

11.50 

9.92 

18 

24.49 

28.00 

46 

21.88 

22.21 

74 

11.04 

9.46 

19 

24.42 

27.90 

47 

21.65 

21.85 

75 

10.57 

9.00 

20 

24.36 

27.79 

48 

21.41 

21.47 

76 

10.08 

8.55 

21 

24.30 

27.67 

49 

21.17 

21.09 

77 

9.59 

8.10 

22 

24.23 

27.55 

50 

20.91 

20.70 

78 

9.10 

7.66 

23 

24.16 

27.42 

51 

20.63 

20.30 

79 

8.63 

7.24 

24 

24.10 

27.29 

52 

20.35 

19.88 

80 

8.19 

6.82 

25 

24.05 

27.15 

53 

20.05 

19.46 

81 

7.72 

6.41 

26 

23.97 

27.00 

54 

19.74 

19.03 

82 

7.27 

6.00 

27 

23.88 

26.85 

55 

19.42 

18.59 

83 

6.88 

6.61 

28 

23.78 

26.69 

56 

19.08 

18.14 

84 

6.60 

5.21 

29 

23.69 

26.53 

57 

18.72 

17.69 

85 

6.53 

4.82 

30 

28.59 

26.35 

58 

18.34 

17.22 

86 

6.01 

4.42 

31 

23.50 

26.17 

59 

17.94 

16.75 

87 

5.55 

4.03 

82 

23.42 

25.98 

60 

17.53 

16.27 

88 

5.23 

3.63 

33 

23.33 

25.79 

61 

17.08 

15.79 

89 

5.08 

3.21 

34 

23.25 

25.58 

62 

16.61 

15.30 

90 

5.46 

2.86 

35 

23.17 

25.36 

63 

16.12 

14.81 

91 

4.84 

2.48 

36 

23.09 

25.14 

64 

15.69 

14.31 

92 

4.10 

2  11 

37 

22.94 

24.90 

65 

15.03 

13.82 

93 

3.37 

176 

38 

22.83 

24.65 

66 

14.63 

13.32 

94 

2.65 

143 

39 

22.72 

24.39 

67 

14.22 

12.83 

95 

2.04 

1.14 

40 

22.61 

24.12 

68 

13.80 

12.33 

96 

1.46 

.90 

41 

22.51 

23.84 

69 

13.36 

11.84 

97 

1.11 

.72 

42 

22.40 

23.64 

70 

12.91 

11.36 

98 

.94 

.47 

ASSIGNMENT    OF    DOWER    AND    OTHER    LIFE-ESTATES.       273 
ESTATE   IN  LIEU   OF   DOWER,    &C. 

In  a  certain  class  of  cases  the  statute  gives  to  the 
widow  a  life-estate  in  one-half  the  lands  of  her  husljand. 
"  When  a  man  dies  seised  of  lands,  tenements,  or  here- 
ditaments, or  of  any  right  or  interest  therein  in  fee- 
simple,  not  having  lawfully  devised  the  same,  and 
leaving  a  widow,  hut  no  issue,  the  wndow  in  lieu  of 
dower  shall  be  entitled  to  one-half  of  said  estate  dur- 
ing her  natural  life ;  and  if  any  part  thereof  taken  by 
the  widow  is  wild  or  woodland,  she  may  use,  clear,  and 
improve  the  same."  If  the  widow  chooses  to  take  dower 
instead  of  this  larger  provision,  she  must  file  in  the  pro- 
bate office  her  election  to  take  dower  within  six  months 
after  the  date  of  letters  of  administration.^ 

When  a  widow  is  entitled  to  any  undivided  part,  or 
the  use  and  improvement  of  any  undivided  part,  of  the 
real  estate  of  her  husband,  for  the  term  of  her  life  or 
widowhood,  by  the  provisions  of  the  wdll  of  her  hus- 
band, in  lieu  of  dower,  or  by  any  provisions  of  law,  the 
probate  court  in  the  county  where  the  estate  of  the  hus- 
band is  settled  may  cause  her  interest  in  said  estate  to 
be  set  off  and  assigned  to  her  in  like  manner  as  dower.^ 

ESTATES   OF   HOMESTEAD. 

Every  householder  having  a  family  ^  may  have  an 
estate  of  homestead,  to   the   extent  in  value   of  eight 

1  Gen.  Sts.  c.  90,  §§  15,  16.  2  Ibid.  §  17. 

*  The  householder's  estate  of  homestead,  once  acquired,  is  not  de- 
feated by  the  death  or  removal  of  his  wife  and  eliildren  from  the  premises, 
or  by  her  obtaining  a  divorce  from  bed  and  board  and  a  decree  giving 
her  the  custody  of  the  children,  if  he  continues  to  reside  thereon.  She 
cannot  by  Iter  act  deprive  him  of  such  estate.  Doyle  v.  Coburn,  6  Allen, 
71 ;  Silloway  v.  Brown,  12  Allen,  30. 

18 


274      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

hundred  dollars  in  the  farm  or  lot  of  land  and  build- 
ings thereon  owned,  or  rightly  possessed  by  lease  or 
otherwise,^  and  occupied  by  him  as  a  residence.^  To 
constitute  such  estate  of  homestead  and  to  entitle  it  to 
be  exempt  from  attachment  or  levy  on  execution,  it 
must  be  set  forth  in  the  deed  by  which  the  property  is 
acquired,  that  it  is  designed  to  be  held  as  a  homestead ; 
or,  after  the  title  has  been  acquired,  such  design  must 
be  declared  b}^  writing  duly  signed,  sealed,  acknowl- 
edged, and  recorded  in  the  registry  of  deeds. 

The  right  of  homestead  may  be  released  by  a  deed  in 
which  the  wdfe  of  the  householder  joins  for  the  purpose 
of  releasing  it,  but  if  it  exists  at  the  time  of  his  death, 
it  "shall  continue  for  the  benefit  of  his  widow  and  minor 
children,  and  be  held  and  enjoyed  by  them,  if  some  one 
of  them  occupies  the  premises^  until  the  youngest  child 
is  twenty-one  years  of  age,  and  until  the  marriage  or 
death  of  the  widow."  And  the  estate  may  be  set  off 
to  the  parties  entitled  thereto  in  the  same  manner  that 
dower  may  be  set  off  to  a  widow.'* 

1  This  does  not  apply  to  land  for  wliich  a  party  has  only  a  bond  for  a 
deed.     Thurston  v.  Haddocks,  6  Allen,  427. 

2  The  estate  is  not  necessarily  limited  to  that  part  of  a  dwelling-house 
occupied  by  the  family,  but  may  exist  in  the  whole  of  a  house,  some 
rooms  of  which  are  let  to  tenants.  Mercier  v.  Chace,  11  Allen,  194.  It 
may  exist  in  a  country  hotel.     Lazell  v.  Lazell,  8  Allen,  575 

^  Gen.  Sts.  c.  104,  §§  1,  2  Tlie  right  of  possession  and  enjoyment  will 
be  in  such  only  of  the  parties  who  have  title  as  remain  in  occupation  of 
the  premises.  Abbott  i'.  Abbott,  97  Mass.  136.  The  use  of  a  room  in  the 
house  by  the  widow,  for  the  purpose  of  storing  furniture,  is  a  sufficient 
occupation.     Brettun  v.  Fox,  100  Mass.  234. 

*  An  assignment  of  dower  to  the  widow  in  part  of  a  dwelling-house 
will  not  prevent  her  from  claiming  an  estate  of  homestead  in  the  residue 
of  it.  Mercier  v.  Chace,  11  Allen,  194.  There  is  nothing  inconsistent  in 
the  right  to  both  dower  and  homestead  in  the  same  estate.  Monk  v. 
Capen,  5  Allen,  146. 

If  a  widow  whose  homestead  estate  has  not  been  assigned  to  her,  but 


ASSIGNMENT   OF   DOWER    AND    OTHER   LIFE-ESTATES.       275 

The  probate  court  has  no  jiirisdiction  to  set  out  an 
estate  of  homestead,  if  the  right  to  it  is  disputed  by  the 
heirs  or  devisees.^ 

The  widow,  and  the  guardian  of  the  minor  children, 
when  he  has  obtained  a  license  therefor  from  the  probate 
court,  as  in  the  case  of  sales  of  real  estate  of  minors,  may 
join  in  a  sale  of  such  estate  of  homestead  ;  or,  if  there  is 
no  widow  entitled  to  such  rights  therein,  the  guardian 
upon  such  license  may  make  sale  thereof;  and  the  widow 
may  make  such  sale  if  there  are  no  minor  children.  The 
purchaser  shall  have  the  right  to  enjoy  and  possess  the 
premises  for  the  full  time  that  the  widow  and  children 
or  either  of  them  might  have  continued  to  hold  and 
enjoy  the  same  if  no  sale  had  been  made.  The  probate 
court  may  apportion  the  proceeds  of  the  sale  among  the 
parties  entitled  thereto.^ 

EELEASE  OF  DOWER  AND   HOMESTEAD   EIGHTS  BY 
GUAEDIANS   OF   INSANE   MAEEIED  WOMEN. 

When  a  married  woman  is,  by  reason  of  insanity,  in- 
competent to  release  her  right  of  dower,  or  right  of 
homestead,  in  her  husband's  real  estate,  a  guardian  may 
be  appointed  for  her,^  and  the  probate  court  ma}^  author- 
ize her  guardian  to  release  her  right  of  dower  or  of  home- 

who  has  had  one-third  of  the  rents  and  profits  set  off  as  her  dower,  and  has 
conveyed  the  interest  so  assigned  to  her,  she  waives  and  relinquishes  her 
right  of  homestead.     Bates  v.  Bates,  97  Mass.  392. 

It  seems  tliat  homestead  cannot  be  assigned  out  of  tlie  rents  and 
profits  of  the  land  and  buildings,  and  cannot  be  held  in  common  with 
other  owners.  Thurston  v.  Maddocks,  G  Allen,  427 ;  Silloway  v.  Brown, 
12  Allen,  30 ;  Bates  v.  Bates,  97  Mass.  302 ;  Bemis  v.  DriscoU,  101  Mass. 
418. 

*  Woodward  v.  Lincoln,  9  Allen,  239 ;  Mercier  v.  Chace,  Ibid.  242 ; 
Lazell  V.  Lazell,  8  Allen,  575. 

2  Gen.  Sts.  c.  104,  §  14.  J  Ante,  page  97. 


276      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

stead.  The  proceedings  in  the  probate  court  in  such 
cases  are  detailed  by  the  statute.  (Gen.  Sts.  c.  108, 
§  20,  et  seq.) 

Sect.  20.  When  the  husband  of  an  insane  woman  is 
desirous  of  conveying  any  of  his  real  estate,  whether 
absolutely  or  by  way  of  mortgage,  he  may  by  petition, 
describing  the  same,  ask  leave  of  the  probate  court  that 
the  dower  of  his  wife,  or  any  estate  of  homestead  therein, 
may  be  released,  setting  forth  the  faots  and  reasons  why 
his  prayer  should  be  granted.^  After  notice  in  some 
newspaper  to  all  persons  interested,  and  a  hearing 
thereon,  the  court,  if  satisfied  that  such  dower  or  estate 
of  homestead  ought  to  be  released,  shall  authorize  her 
guardian  to  make  such  release,  by  joining  in  any  deed 
of  conveyance,  to  be  made  within  five  years  thereafter, 
either  by  the  husband  or  any  trustee  for  him,  and 
whether  such  deed  pass  the  whole  or  only  separate 
parcels  or  lots  of  said  real  estate. 

Sect.  21.  If  the  guardian  is  so  authorized  to  release 
the  dower  of  his  ward,  and  the  probate  court  deems  it 
proper  that  some  portion  of  the  proceeds  of  such  real 
estate,  or  of  any  sum  loaned  on  mortgage  thereof,  should 
be  reserved  for  the  use  of  such  married  woman,  the  court 
may  order  that  a  certain  sum,  not  exceeding  thirty-three 
and  one  third  per  cent  of  the  net  amount  of  such  pro- 
ceeds or  sum  actually  to  be  realized  from  such  sale  or 
mortgage,  exclusive  of  any  incumbrance  then  existing 
on  the  estate,  shall  be  set  aside  and  paid  over  to  such 
guardian,  to  be  invested  and  held  by  him  for  her  benefit, 
if  she  survives  her  husband  ;  the  income  of  such  sum  to 
be  received  and  enjoyed  by  the  husband  during  the  life 
of  his  wife,  or  until  otherwise  ordered  by  the  court,  upon 

1  See  Appendix,  form  Nos.  89,  90. 


ASSIGNMENT    OF   DOWER   AND    OTHER   LIFE-ESTATES.      277 

good  cause  shown  ;  and  the  principal  to  be  his,  and  to  be 
paid  over  to  him,  if  he  survives  her. 

Sect.  22,  If  the  guardian  is  so  authorized  to  release 
the  estate  of  homestead,  and  the  probate  court  deems  it 
proper  that  some  portion  of  the  proceeds  of  such  real 
estate,  or  of  any  sum  loaned  on  mortgage  thereof,  should 
be  reserved  for  the  use  of  such  married  woman,  the  court 
may  order  that  a  certain  sum,  not  exceeding  eight  hun- 
dred dollars,  be  set  aside  and  paid  over  to  such  guardian, 
to  be  invested  in  a  homestead,  and  held  by  him  for  the 
benefit  of  such  married  woman,  if  she  survives  her  hus- 
band ;  the  rent  or  use  thereof  to  be  received  and  enjoyed 
by  the  husband  during  the  life  of  his  wife,  or  until  other- 
wise ordered  by  the  court,  upon  good  cause  shown  ;  and 
the  homestead  to  be  his,  and  to  be  conveyed  to  him  by 
said  guardian,  if  he  survives  her. 

Sect.  23.  When  the  husband  of  an  insane  woman 
has  conveyed  any  real  estate  in  trust,  without  the  power 
of  revocation,  and  in  such  conveyance  provision  is  made 
for  his  wife,  which,  in  the  opinion  of  the  probate  court, 
to  be  certified  on  petition,  notice,  and  hearing,  is  suf- 
ficient in  lieu  of  dower  therein,  the  trustee  in  such  con- 
veyance shall  be  authorized  to  pass  title  to  such  real 
estate  free  from  all  right  of  dower. 

Sect.  24.  If,  in  the  opinion  of  the  probate  court, 
certified  as  aforesaid,  such  provision  is  sufficient  in  lieu 
of  dower  of  such  insane  woman  in  all  the  real  estate 
owned  by  her  husband  at  the  date  of  the  petition,  or  in 
any  particular  portions  thereof,  her  guardian  shall  be 
authorized  to  release  her  dower  in  all  such  real  estate, 
or  such  particular  portions,  by  joining  in  a  deed  of  con- 
veyance of  the  same. 

Sect.  25.  All  proceedings  in  the  probate  court,  under 
the  five  preceding  sections,  shall  be  had  in  the  county 


278      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

where  the  husband  of  the  insane  woman  resides,  if  an 
inhabitant  of  this  State,  and  if  not,  then  in  some  county 
where  any  of  his  real  estate  is  situated ;  and  a  certified 
copy  of  all  final  orders  or  decrees  therein^ shall  be  re- 
corded in  the  registry  of  deeds  in  every  county  or  dis- 
trict in  which  such  real  estate  is  situate." 


CHAPTER  XIX. 

PEOBATE   BONDS. 
AS   TO   BONDS    GENERALLY.! 

The  sureties  in  every  bond  given  to  the  judge  of  the 
probate  court  must  be  inhabitants  of  this  State,  and  such 
as  the  judge  approves  ;  and  no  bond  required  to  be  given 
to  the  judge,  or  filed  iu  the  probate  office,  is  sufficient, 
unless  examined  and  approved  by  the  judge,  and  his 
approval  thereof  under  his  official  signature  is  written 
thereon.^ 

Whenever  bonds  are  required  to  be  given  to  the  judge 
of  a  probate  court  by  two  or  more  persons  acting  jointly 
as  executors,  administrators,  trustees,  or  otherwise,  such 
persons  may  give  either  separate  or  joint  bonds. ^ 

1  As  to  the  conditions  of  bonds  given  to  the  judge  of  probate,  in  the 
course  of  proceedings  in  tlie  probate  court,  see  tlie  chapters  referring  to 
the  several  proceedings  in  which  bonds  are  required. 

2  Gen.  Sts.  c.  101,  §  12. 

'  Stat.  1874,  c.  366.  An  executor's  bond,  approved  by  the  judge,  in 
which  tlie  sureties  are  each  bound  in  lialf  tlie  sum  in  which  the  principal 
is  bound,  is  not  for  tliat  cause  void,  but  is  binding  on  the  obligors,  and 
sufficient  to  give  effect  to  the  executor's  appointment,  and  to  render  his 
acts  as  such  valid ;  but  it  seems  tliat  the  supreme  court,  on  an  appeal 
from  the  decree  of  the  judge  of  probate  approving  a  bond  in  that  forno, 
would  not  countenance  such  a  departure  from  the  usual  course  of  pro- 
ceeding.    Baldwin  v.  Standish,  7  Cush.  207. 

On  a  joint  and  several  bond  given  by  two  executors  both  are  liable 
for  a  default  of  either  during  the  joint  executorship  ;  but,  if  one  of  them 
dies,  his  heirs  and  legal  representatives  are  not  liable  for  the  subsequent 
misconduct  of  the  survivor.  Brazer  v.  Clark,  5  Pick.  96 ;  Ames  v.  Arm- 
strong, 106  Mass.  15. 


280      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

All  bonds  given  to  the  probate  conrt  must  be  in  such 
sum  as  the  judge  shall  order,  and  made  payable  to  the 
judge  and  his  successors  in  office ;  in  cases  when  the 
office  is  vacant,  to  the  acting  judge  and  his  succes- 
sors.^ 

In  practice,  particularly  when  the  sureties  reside  at  a 
distance  from  the  place  of  holding  the  probate  court, 
bonds  are  executed  in  anticipation  of  the  probate  of  the 
will,  or  other  decree  requiring  a  bond  to  be  given,  and 
are  held  in  readiness  to  l)e  offered  for  approval  whenever 
the  decree  is  passed.  When  this  course  is  followed,  care 
should  be  taken  by  the  party  offering  the  bond  that  the 
instrument  be  unexceptionable,  both  as  to  the  penal  sum 
and  the  sufficiency  of  the  sureties.  The  amount  of  the 
penalty  of  the  bond  should  be  proportioned  to  the  ex- 
tent of  the  interest  to  be  protected,  regard  being  had  to 
the  situation  of  the  estate  and  to  all  the  circumstances 
of  the  case.^  In  a  majority  of  cases,  the  sum  named  in 
the  bond  should  be  double  the  value  of  the  property 
which  the  bond  is  intended  to  secure  ;  and  as  the  judge 
may  not  have,  at  the  time  when  the  bond  is  offered  for 
approval,  any  knowledge  either  of  the  value  of  the  es- 
tate or  of  the  responsibility  of  the  sureties,  the  party- 
offering  the  bond  should  be  prepared  to  show  the  writ- 
ten opinion,  on  both  points,  of  the  persons  interested  in 
the  estate,  or,  if  they  cannot  be  reached,  of  some  persons 
known  to  the  judge.     This  precaution  may  enable  ex- 

1  Gen.  Sts.  c.  119,  §  5. 

-  In  an  application  by  a  foreigner  for  ancillary  letters  of  administra- 
tion, for  the  purpose  of  collecting  a  debt,  a  bond  was  taken  by  the 
supreme  court  of  probate  in  §5,000,  which  amount  was  less  ttian  tliat  of 
the  debt  to  be  collected,  it  appearing  that  the  heirs  and  foreign  creditors 
were  secured  imder  the  laws  of  the  intestate's  domicile,  and  that  there 
were  probably  no  creditors  in  the  United  States.  Piquet,  appellant,  5 
Pick.  65. 


PROBATE   BONDS.  281 

ecutors  and  others  living  at  a  distance  from  the  place  of 
holding  the  couit  to  avoid,  expense  and  delay. 

•WTTKN"   >rE"SV   BONDS   MAY   BE   EEQUIBED. 

When  the  sureties  or  the  penal  sum  in  anv  bond  given 
to  the  probate  court  are  instifficient.  the  supreme  judicial 
court,  or  the  probate  court,  on  the  petition  of  any  person 
interested,  and  after  notice  to  the  principal  in  the  bond, 
may  require  a  new  bond  with  such  surety  or  sureties, 
and  in  such  penal  sum.  as  the  court  shall  direct.* 

In  case  of  the  marriage  of  a  woman  who  is  executrix, 
administratrix,  guardian,  or  trustee,  her  bondsmen,  on 
petition  to  the  probate  court,  may  be  released  from  lia- 
biht  J  on  their  bond,  beyond  accounting  for  and  paying 
over  the  money  and  property  already  in  her  hands.^ 

Any  stuety  may,  upon  his  petition  to  the  supreme 
judicial  court,  or  the  probate  court,  be  discharged  from 
all  further  responsibility,  if  the  coiirt,  after  due  notice  to 
all  persons  interested,  deems  it  reasonable  and  proper ; 
and  the  principal  will  thereupon  be  required  to  give  a 
new  bond.^ 

1  Gen.  Sts.  c.  101,  §  15.  The  goardiaii  of  a  minor,  who  had  gma 
bond  in  the  fonn  required  by  law,  having  represented  to  the  judge  of 
probate,  that,  since  his  appointment,  his  waid  had  rec^Ted  a  l^acy  ex- 
ceeding in  amount  the  penalty  of  the  bond ;  and  having  suggested  that 
the  judge  should  make  such  order  in  the  premises  as  to  law  and  justice 
might  appertain  :  the  judge  ordered  him  to  file  a  new  bond  in  a  larger 
sum  ;  and  tlie  guardian  filed  a  new  bond  accordinglj,  with  a  new  surety. 
Hdd,  that  both  bonds  were  valid ;  that  the  sureties  were  to  be  deemed 
cosureties :  and  that,  being  sureties  in  different  simis,  they  were,  as 
between  themselves,  compellable  to  contribute  in  proportion  to  the  dit 
ferent  penalties  of  their  respective  bonds.  LcHing  r.  Bacon.  3  Cush.  466. 
See  Appendix,  form  Xos.  78,  79. 

a  Stat-  1869,  c-  409. 

»  Gen.  Sts.  c  101,  §  16.    See  Appendix,  form  Xos.  S<.\.  51. 


282      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

If  the  principal  fails  to  give  a  new  bond  within  such 
time  as  is  ordered  by  the  court,  he  will  be  removed,  and 
some  other  person  appointed  in  his  stead. ^ 

When  a  new  bond  is  so  required,  the  sureties  in  the 
prior  bond  are  liable  for  all  breaches  of  the  condition 
committed  before  the  new  bond  is  approved  by  the 
judge. 2 

SUITS  ON  BONDS  OF  EXECUTORS  AND  ADMINISTEATORS. 

Suits  on  probate  bonds  are  brought  in  the  name  of 
the  judge  of  the  probate  court,^  and,  except  in  certain 
classes  of  cases  specified  by  the  statute,"*  are  brought 
only  on  leave  granted  by  the  court.  There  are  three 
cases,  and  only  three,  in  which  a  person  can  sue  the 
bond  of  an  executor  or  administrator  for  his  own  benefit, 
without  first  obtaining  authority  from  the  probate  court : 
1st.  When  the  claim  is  by  a  creditor  who  has  recovered 
judgment  against  the  executor  or  administrator ;  ^  2d. 
When  the  estate  is  insolvent,  and  the  amount  due  the 
creditor  has  been  ascertained  by  a  decree  of  distribution  ; 
3d.  By  a  person  next  of  kin  whose  distributive  share  of 

1  Gen.  Sts.  e.  101,  §  17.  ^  ibid.  §  18. 

3  When  the  judge  is  obligor  as  principal  or  surety  in  a  bond  given  to 
a  former  judge  of  the  court,  suit  may  be  brought  upon  tlie  bond  in  the 
name  of  the  judge  mentioned  therein,  his  executors  or  administrators. 
Gen.  Sts.  c.  101,  §  23. 

4  Ibid.  §§  19,  20,  21. 

*  If  an  administrator  suffers  judgment  to  be  recovered  against  him 
before  he  represents  the  estate  insolvent,  he  must  pay  the  full  amount  of 
the  judgment,  even  if  the  estate  is  insolvent,  and  he  and  liis  sureties  are 
liable  to  a  suit  by  the  judgment  creditor  on  the  bond.  Newcomb  v.  Gosa, 
1  Met.  333. 

In  an  action  on  a  bond  against  an  administrator  and  his  sureties  for  a 
refusal  to  pay  a  judgment  recorded  against  him,  such  judgment,  if  not 
obtained  by  fraud  or  collusion,  is  conclusive  on  the  sureties,  in  regard  to 
all  matters  of  defence  affecting  the  merits  of  the  claim  as  between  the 
parties  to  tlie  judgment.     Heard  v.  Lodge,  20  Pick.  53. 


PROBATE    BONDS.  283 

the  personal  estate  has  been  ascertained  by  a  decree 
of  the  probate  court.  In  each  case,  the  person  bringing 
the  action  must  first  have  made  an  ineffectual  demand 
upon  the  executor  or  administrator.  These,  it  will  be 
seen,  are  cases  in  which  the  right  of  the  claimant  has 
been  liquidated  and  ascertained  by  matter  of  record, 
amounting  to  a  conclusive  judgment  between  the  par- 
ties, and  nothing  remains  but  payment.^ 

In  all  other  cases,  the  party  aggrieved  by  the  failure 
of  the  executor  or  administrator  to  perform  his  duty, 
must  obtain  leave  of  the  probate  court  before  bringing 
an  action  on  the  bond.  This  is  the  course  to  be  pur- 
sued by  a  legatee  when  the  executor  neglects  to  pay  his 
legacy ;  ^  and  by  a  creditor,  or  one  next  of  kin  (whose 
claim  or  share  has  not  been  ascertained  by  a  judgment 
or  decree),  or  other  person  aggrieved  by  any  maladmin- 
istration.^    These  are  cases  in  which  the  maladministra- 

1  Loring  v.  Kendall,  1  Gray,  316;  Newcomb  v.  Williams,  9  Met.  536; 
Barton  v.  White,  21  Pick.  60. 

2  Newcomb  v.  Williams,  9  Met.  525;  Fay  v.  Taylor,  2  Gray,  158; 
Conant  v.  Stratton,  107  Mass.  474. 

3  For  the  failure  of  the  administrator  to  accomit  within  one  year,  no 
action  lies  on  tlie  probate  bond,  after  the  allowance  by  the  judge  of  pro- 
bate, at  the  request  of  the  parties  in  interest,  of  an  account  subsequently 
rendered  by  him.     Loring  v.  Kendall,  1  Gray,  305. 

Where  a  creditor  gives  up  his  securities  against  an  estate,  on  a  per- 
sonal promise  by  the  executor  to  pay  his  debt,  it  seems  that  he  thereby 
loses  his  remedy  on  the  executor's  bond,  given  to  pay  debts  and  legacies. 
Stebbins  v.  Smith,  4  Pick.  97. 

If  an  executor  be  also  appointed  trustee  in  the  will,  but  give  bond  only 
as  executor,  he  is  chargeable  in  that  capacity  for  the  property  in  his 
hands,  until  he  has  given  bond  as  trustee,  and  charged  himself  with  the 
property  as  trustee.     Prior  v.  Talbot,  10  Gush.  1. 

Where  a  general  legacy  is  given  to  one  for  life  with  remainder  over, 
and  no  special  trustee  is  appointed  to  manage  the  same,  tlie  executor  is 
liable  on  his  bond,  if  he  does  not  renounce  the  trust,  for  any  default  in 
reference  to  such  legacy.     Dorr  v.  Wainwriglit,  13  Pick.  328. 

An  administrator's  bond  given  here,  does  not  cover  proceedings  under 


281      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

tion  may  have  been  alike  injurious  to  all  the  creditors, 
next  of  kin,  or  legatees.  No  one  of  them  is  exclusively 
entitled  to  prosecute  an  action,  and  the  statute  therefore 
authorizes  the  probate  court  to  designate  some  one  of 

letters  of  ancillary  administration  taken  out  in  another  State.  Hooker 
V.  Olmstead,  6  Pick.  481. 

A  bond  given  by  an  administrator,  on  being  licensed  to  sell  so  much 
only  of  his  intestate's  real  estate  as  is  sufficient  for  the  payment  of  debts 
and  charges,  is  not  a  probate  bond,  and  an  action  upon  it  cannot  be  com- 
menced originally  in  the  supreme  judicial  court.  Fay  v.  Valentine,  8  Pick. 
526. 

A  probate  bond  is  not  provable  in  bankruptcy  against  one  of  the  sure- 
ties before  a  breach  of  condition  of  the  bond  ;  nor,  it  seems,  before  judg- 
ment in  an  action  brought  for  such  breach.  Loring  v.  Kendall,  1  Gray, 
305. 

Where  a  testator  devised  an  annuity  to  his  widow,  and  authorized  his 
executor  to  sell  lands  sufficient  to  raise  a  fund,  the  interest  of  which 
should  be  equal  to  the  annuity,  the  executor's  neglect  to  raise  said  fund 
was  held  to  be  a  breach  of  his  bond.     Prescott  v.  Pitts,  9  Mass.  376. 

When  the  same  person  is  executor  of  a  will  and  guardian  of  a  minor 
to  whom  a  legacy  is  given  by  the  will,  he  holds  the  amount  of  the  legacy 
in  his  capacity  of  executor,  and  not  as  guardian,  until  he  settles  an  ac- 
count of  his  administration  in  the  probate  court,  crediting  himself  as 
executor  with  the  legacy,  and  charging  himself  therewith  as  guardian. 
Until  such  account  is  allowed  by  the  probate  court,  an  action  cannot  be 
maintained  against  him  and  his  sureties  on  his  guardianship  bond,  for 
neglect  to  pay  the  legacy ;  but  an  action  may  be  maintained  against  him 
and  his  sureties  on  the  bond  given  by  him  as  executor.  Conkey  v.  Dick- 
inson, 13  Met.  51. 

A  suit  on  the  administrator's  bond  can  be  maintained  for  the  benefit 
of  the  heirs,  for  waste  in  suffering  property  to  be  sold  at  a  disadvantage 
and  loss,  on  execution.  Brazer  v.  Clark,  5  Pick.  96 ;  Dawes  v.  Winship, 
Ibid.  97. 

Where  an  executor  sold  real  estate  under  a  license  obtained  by  his 
misrepresentations  as  to  the  condition  of  the  estate  in  his  hands,  it  was 
held  that  such  sale  was  a  breach  of  his  bond.  Chapin  v.  Waters,  110 
Mass.  195. 

A  devisee  of  real  estate,  having  only  a  contingent  interest  therein,  or 
a  present  interest  defeasible  upon  a  condition  subsequent,  is  not  entitled 
to  bring  an  action  on  tlie  administration  bond.  Stevens  v.  Cole,  7  Cush. 
467.     Whether  a  devisee  of  real  estate  is  a  person  interested  in  the  estate 


PROBATE    BONDS.  285 

the  persons  interested  to  bring  an  action  for  the  benefit 
of  all.i 

An  action  may  be  brought  on  a  probate  bond  at  any 
time  within  twenty  years  after  the  breach  of  the  condi- 
tion relied  on  as  a  cause  of  action.^ 

Any  person  interested  in  the  estate  may  petition  for 
leave  to  sue  the  bond.^  The  petition  should  state  clearly 
all  the  facts  necessary  for  the  consideration  of  the  court, 
or  proper  to  be  notified  to  the  adverse  party.  Upon  the 
petition,  a  citation  usually  issues  to  the  administrator 
and  his  sureties,  and  the  petitioner  must  see  that  the 
citation  is  served  in  the  manner  required  by  its  terms.* 

The  petitioner  must  be  prepared,  at  the  time  fixed  for 
the  hearing,  to  show  that  the  administrator  has  so  failed 
to  perform  his  duty  as  to  render  proper  a  suit  on  his 

of  a  testator  and  entitled  as  such  to  bring  an  action  on  the  administration 
bond,  qucere.     Ibid. 

A  refusal  by  an  administrator  to  comply  with  a  decree  of  the  probate 
court  in  itself  void,  is  not  a  breach  of  his  bond.  Hancock  v.  Hubbard, 
19  Pick.  167  ;  Dawes  v.  Head,  3  Pick.  128.  His  refusal  to  pay  a  judg- 
ment recovered  against  him  by  default  in  an  action  commenced  more 
than  two  years  after  the  filing  of  his  administration  bond  does  not  ren- 
der his  sureties  liable  to  the  judgment  creditor.  Robinson  v.  Hodge,  117 
Mass.  222. 

»  Gen.  Sts.  c.  101,  §  22.  2  Prescott  v.  Reed,  8  Cush.  365. 

3  The  father  of  an  infant  interested  in  the  estate  having  himself  no 
adverse  interest  therein,  may  petition,  as  ne.xt  friend  of  the  infant,  for 
leave  to  sue  the  bond.  Stevens  v.  Cole,  7  Cush.  467.  See  Appendix, 
form  Nos.  82,  83. 

*  Leave  may  be  granted  to  a  legatee  to  bring  an  action  on  a  probate 
bond,  witliout  notice  to  the  obligors  of  the  application  for  such  leave,  or 
previously  summoning  the  principal  obligor  to  render  an  account,  and 
ordering  distribution  thereon.     Richardson  v.  Oakman,  15  Gray,  57. 

Upon  a  special  bond  given  by  an  administrator  licensed  to  sell  more 
real  estate  than  is  necessary  for  the  payment  of  debts,  to  account  for  the 
surplus  proceeds,  an  action  will  lie  after  neglect  for  an  unreasonable  time 
to  render  such  an  account  in  tiie  probate  court,  although  he  has  not  been 
cited  to  do  so.     Bennett  v.  Overing,  16  Gray,  267. 


286  PROCEEDINGS   IN   THE   PROBATE   COURTS. 

bond.  The  leave  to  bring  the  action  can  only  be  granted 
by  a  decree  in  writing.^  An  appeal  lies  from  a  decree 
of  the  probate  court  refusing  leave  to  sue  the  bond  ;  but 
the  signers  of  the  bond  cannot  appeal  from  a  decree 
allowing  a  suit ;  ^  nor  contest  the  validity  of  the  decree 
in  the  action.^ 

When  the  judge  is  obligor,  as  principal  or  surety,  in 
a  bond  given  to  a  former  judge  of  tlie  court,  the  register 
of  the  probate  court  for  the  county  in  which  such  bond 
was  given  may  authorize  a  suit  thereon,  in  like  manner 
and  upon  the  same  conditions  as  the  court  may  in  other 
cases.^ 

Every  suit  on  an  administration  bond  must  be  brought 
in  the  supreme  judicial  court,  held  for  the  county  in 
which  the  bond  was  taken.  The  writ  must  be  indorsed 
by  the  persons  for  whose  benefit  or  at  whose  request 
the  action  is  brought,  or  by  their  attorney,  and  the  in- 
dorsers  are  liable  for  the  costs  of  suit.  If  the  action  is 
brought  by  a  judgment  creditor,  or  by  a  creditor  or  dis- 
tributee, the  amount  of  whose  claim  or  share  has  been 
established  by  a  decree  of  distribution,  there  must  be  a 
further  indorsement  specifying  that  it  is  brought  for  the 
use  or  benefit  of  such  creditor  or  next  of  kin  ;  ^  and  exe- 
cution, if  he  obtains  judgment,  will  be  awarded  for  his 
own  use.  In  every  other  case  the  recovery  is  of  all 
damages  occasioned  by  the  default  of  the  delinquent 
administrator,  not  the  especial  damage  sustained  by 
any  one  person.  The  suit  is  for  the  benefit  of  all 
persons  interested.  One  judgment  is  rendered  for  the 
entire  penalty,  and  execution  is  awarded  in  the  name 

1  Fay  V.  Rogers,  2  Gray,  175.  "  ibid. 

8  Bennett  v.  Woodman,  116  Mass.  518. 

<  Gen.  Sts.  c.  101,  §§  23,  24. 

6  Ibid.  §  25;  Bennett  v.  Russell,  2  Allen,  637. 


PROBATE    BONDS.  287 

of  the  judge  of  probate  as  the  rights  of  the  parties  in- 
terested require.^ 

The  money  received  on  such  execution  is  assets  of 
the  estate  to  be  administered,  and  goes  into  the  hands 
of  the  rightful  executor  or  administrator  for  that  pur- 
pose. Generally,  maladministration  which  constitutes 
a  breach  of  his  bond  will  disqualify  an  administrator 
and  cause  his  removal.  But  if  there  were  two  or  more 
executors,  and  separate  bonds  were  given,  there  may  be 
a  coexecutor  not  implicated,  in  which  case  the  money  is 
paid  to  him.  And  it  may  be  that  the  breach  of  the  bond 
was  of  such  a  nature  as  not  to  implicate  the  integrity 
of  the  executor,  as  when  the  suit  was  brought  to  settle 
some  question  of  right,  in  which  case  he  may  charge 
himself  with  the  amount  of  the  judgment  recovered,  and 
settle  the  estate.  But  wlien  the  breach  of  the  bond  is 
followed,  as  is  generally  the  case,  by  the  removal  of 
the  executor  or  administrator,  and  there  is  no  coexecu- 
tor not  implicated,  the  money  recovered  on  the  execu- 
tion is  paid  to  the  administrator  appointed  in  his  stead,  to 
be  administered  according  to  law.^  In  case  the  awards 
of  execution  do  not  exhaust  the  whole  penalty,  the  judg- 
ment for  the  residue  stands  for  any  other  breach,  which 
may  at  any  time  afterwards  occur,  to  be  sued  for  by 
scire  facias,  either  for  the  benefit  of  a  party  entitled  to 
claim  in  his  own  right,  or  by  the  judge  of  the  probate 
court  as  trustee  for  others.^ 

1  See  Gen.  Sts.  c.  101,  §  28  ;  Cliapin  v.  Waters,  110  Mass.  195;  Choate 
V.  Arrlngton,  116  Mass.  552. 

2  Gen.  Sts.  c.  101,  §  29.  Newcomb  v.  Williams,  9  Met.  538 ;  Wiggin 
V.  Sweet,  6  Met.  198.  The  entry  of  judgment  may  be  suspended  until 
opportunity  has  been  afforded  for  an  application  to  the  probate  court  for 
the  removal  of  the  administrator.     Bennett  v.  Russell,  2  Allen,  637. 

8  Gen.  Sts.  c.  101,  §  30. 


288  PROCEEDINGS    IN   THE   PROBATE    COURTS. 


SUITS   UPON   BONDS    OF   TRUSTEES   AND   GUARDIANS. 

Bonds  given  by  trustees  may  be  put  in  suit  by  order 
of  the  probate  court  for  the  use  and  benefit  of  any  per- 
son interested  in  the  trust  estate  ;  ^  and  bonds  given  by 
guardians,  for  the  use  and  benefit  of  the  ward  or  any 
person  interested  in  the  estate.^  The  proceedings  in 
either  case  are  conducted  in  like  manner  as  suits  on  the 
bonds  of  executors  and  administrators,  but  no  suit  can 
be  maintained  unless  it  is  brought  by  leave  of  the  pro- 
bate court. 

Actions  against  sureties  in  a  guardian's  bond  are  lim- 
ited to  four  years  from  the  time  the  guardian  is  dis- 
charged, except  that  if,  at  the  time  of  the  discharge,  the 
person  entitled  to  bring  the  action  is  out  of  the  State,  it 
may  be  commenced  at  any  time  within  four  years  after 
his  return.^  By  the  term  "  discharged  "  in  the  statute 
is  intended  any  mode  by  which  the  guardianship  is  effec- 
tually determined,  either  by  the  removal,  resignation,  or 
death  of  the  guardian,  the  arrival  of  a  minor  ward  at 
full  age,  or  otherwise*  The  limitation  applies  as  well 
to  bonds  given  by  guardians  on  obtaining  license  to  sell 
real  estate,  as  to  the  general  guardianship  bond.^ 

1  Gen.  Sts.  c.  100,  §  12.  2  ibid.  c.  109,  §  28.  3  ibid.  §  29. 

*  Lorinfj:  v.  Alline,  9  Gush.  68. 

5  Ibid.  70.  If  the  bond  originally  given  by  tlie  guardian  binds  him  to 
account  for  the  proceeds  of  real  estate  sold  bj'  him,  it  covers  his  liability 
as  to  accounting  for  such  proceeds  at  the  expiration  of  his  trust;  and  the 
special  bond  given  upon  his  being  licensed  to  sell  real  estate  for  tlie  pur- 
pose of  investing  the  proceeds  applies  only  to  a  proper  compliance  with 
the  prerequisites  to  such  sale,  and  a  faithful  discharge  of  his  duties  in 
conducting  it.  The  sureties  in  such  special  bond  are  not  liable  for  the 
failure  of  the  guardian,  at  the  expiration  of  the  trust,  to  pay  over  the 
proceeds  of  the  sale  or  the  securities  therefor  to  the  person  legally  entitled 
thereto.    Fay  v.  Taylor,  11  Met.  639.    See  Brooks  v.  Brooks,  11  Gush.  22. 

A  guardian,  licensed  to  sell  real  estate  for  the  purpose  of  investment, 


PROBATE    BONDS.  289 

did  not  duly  invest  the  proceeds,  but  charged  himself  with  such  proceeds, 
and  with  interest  thereon  from  year  to  year,  in  his  general  guardianship 
account,  which  was  allowed  by  the  court,  and  expended  sums  equal  to 
such  interest  for  the  support  of  his  ward  Held,  that  he  was  responsible 
for  such  proceeds  upon  the  special  bond  given  by  him  on  obtaining  the 
license ;  but  for  the  interest  thereon  upon  his  general  bond.  Mattoon  v. 
Cowing,  13  Gray,  387. 

A  guardian  is  responsible  on  his  general  bond,  for  money  due  from 
him  to  his  ward  at  the  time  of  his  appointment,  and  for  the  rent  of  real 
estate  occupied  by  the  guardian  before  that  time.     Ibid. 

The  sureties  on  a  guardian's  bond  are  not  discharged  from  liability  by 
the  fact  that  the  guardian's  account  is  not  settled  until  more  than  two 
years  after  his  death,  and  after  the  right  of  action  against  his  administra- 
tor is  barred  by  the  statute  of  limitations.  Chapin  v.  Livermore,  13  Gray, 
561. 

A  bill  in  equity  for  the  recovery  of  a  debt  due  from  the  ward  cannot 
be  sustained  against  the  guardian ;  the  remedy  is  by  action  on  the  bond. 
Conant  v.  Kendall,  21  Pick.  36.  The  guardian  is  not  liable,  in  an  action 
of  assumpsit,  to  one  who  has  furnished  necessaries  for  the  ward,  but  only 
in  an  action  on  his  bond.  Cole  v.  Eaton,  8  Cush.  587.  And  see  Brooks 
V.  Brooks,  11  Cush.  18. 


19 


CHAPTER  XX. 

APPEALS  FROM  THE  PEOBATE  COURT. 

The  supreme  judicial  court  is  also  the  supreme  court 
of  probate,  and  has  appellate  jurisdiction  of  all  matters 
determinable  by  the  probate  courts.  The  statute  pro- 
vides that  "  any  person  aggrieved  by  an  order,  sentence, 
decree,  or  denial  of  the  court  or  judge,  except  in  cases 
otherwise  provided  for,  may  appeal  therefrom  to  the 
supreme  judicial  court."  ^  This  provision  of  the  statute 
applies  to  all  decrees  or  orders  of  the  probate  court. 
The  "cases  otherwise  provided  for"  are  proceedings 
before  the  judge,  but  not  in  probate  court,  such  as  com- 
mitments to  the  Industrial  and  State  Reform  schools ; 
in  which  cases  the  statute  provides  for  appeals  to  the 
superior  court.^ 

WHO   ARE  entitled   TO   APPEAL. 

The  right  to  appeal  depends  upon  the  relations  of  the 
appellant  to  the  subject-matter  of  the  decree  or  other 
order.  It  is  not  limited  to  the  parties  directly  connected 
w^ith  the  proceeding  in  question,  but  is  given  to  "  any 
person  aggrieved."  ^  Mere  dissatisfaction  with  the  de- 
cree gives  no  right  to  an  appeal  from  it.     But  a  person 

1  Gen.  Sts.  c.  117,  §§  7,  8.  2  ibid.  c.  75,  §  12;  c.  76,  §  24. 

3  The  surety  in  a  guardian's  bond  may  appeal  from  a  decree  allowing 
the  account  of  his  principal.  Livermore  v.  Bemis,  2  Allen,  39-1.  And  see 
Farrar  v.  Parker,  3  Allen,  556. 


APPEALS    FROM    THE    PROBATE    COURT.  291 

is  aggrieved  within  the  meaning  of  the  statute  whenever 
his  rights  are  concluded  or  in  any  way  affected  by  it.^ 
He  may  be  aggrieved  when  the  rights  and  interests  to 
be  affected  are  those  which  he  has  in  a  representative 
capacity  ;  an  administrator  de  bonis  non  may  appeal  from 
the  decree  allowing  the  administration  account  of  the 
original  executor  or  administrator  ;  ^  and  an  administra- 
tor appointed  in  another  State,  on  the  estate  of  a  person 
there  deceased,  may  appeal  from  the  decree  of  a  probate 
court  in  this  State,  appointing  an  administrator  here.^ 
One  who  has  purchased  lands  of  the  heirs  or  devisees 
may  be  so  interested  as  to  appeal  from  a  decree  respect- 
ing the  estate  of  the  testator  or  intestate ;  *  and  so  may 

1  One  claiming  property  of  a  deceased  person  under  a  gift  causa  mor- 
tis, is  not  affected  by  decrees  of  the  probate  court  charging  the  adminis- 
trator with  the  property  and  ordering  it  to  be  distributed  to  the  next  of 
kin ;  and  cannot  appeal  from  such  decrees,  though  he  appeared  and  pro- 
duced witnesses  in  that  court.     Lewis  v.  Bolitho,  6  Gray,  137. 

A  testator  bequeathed  money  to  trustees  to  be  managed  as  an  accumu- 
lating fund  for  sixty  years,  and  tiien  to  be  paid  to  tlie  town  of  N.  or  its 
agents,  for  the  purpose  of  purchasing  land  within  the  town  for  a  model 
farm.  Held,  that  the  town  could  appeal  from  a  decree  respecting  the 
testator's  will.     Northampton  v.  Smith,  11  Met.  390. 

From  a  decree  of  the  probate  court  appointing  a  guardian  to  a  minor 
child,  the  trustees  of  a  fund  bequeathed  for  the  benefit  of  such  child  have 
no  authority  to  appeal.     Deering  ».  Adams,  31  Maine,  41. 

A  creditor  of  the  estate  of  a  deceased  person  cannot  appeal  from  a 
decree  refusing  the  petition  of  the  administrator  for  leave  to  sell  real 
estate  of  the  deceased  for  the  payment  of  debts.  Henry  v.  Esty,  13  Gray,  336. 

2  Wiggin  v.  Swett,  6  Met.  194. 

3  Smitii  V.  Sherman,  4  Cush.  408. 

*  A  purcliaser  of  the  reversionary  interest  in  land  of  a  deceased  insol- 
vent assigned  to  his  widow  as  dower,  may  appeal  from  the  decree  of  the 
probate  court  ajjpointing  an  administrator  de  bonis  non.  Bancroft  v.  An- 
drews, 6  Cusli.  493. 

M.  died  seised  of  land,  one-half  of  which  descended  to  his  daughter 
S. ;  she  married  B.,  who  survived  her,  and  became  tenant  by  the  curtesy 
of  said  half  of  the  land.  B.  conveyed  his  interest  to  C.  llild,  that  C 
could  appeal  from  a  decree  allowing  an  account  which  showed  a  balance 


292      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

a  creditor  of  the  heir  or  devisee  under  some  circum- 
stauces.i 

MANNER   OF   CLAIMING   AND   ENTERING   THE   APPEAL. 

Tlie  appeal  must  be  claimed  and  notice  thereof  given 
at  the  probate  office  within  thirtj^  days  after  the  date  of 
the  act  appeale(i  from,  and  must  be  entered  in  the  su- 
preme judicial  court  at  the  rule  day  a[)pointed  by  said 
court  for  tlie  same  county,  next  after  the  expiration  of 
fifty  days  from  the  date  of  the  act  so  appealed  from. 
The  notice  given  at  the  probate  office  must  be  in  writing.''^ 

The  appellant  must  also  file  in  the  probate  office  his 
reasons  of  appeal,  and  cause  an  attested  copy  thereof  to 
be  served  on  the  adverse  party  fourteen  days  at  least 
before  the  time  when  the  appeal  is  to  be  entered.^  All 
the  reasons  of  appeal  upon  which  the  appellant  relies 
should  be  stated,  as  he  is  restricted  at  the  trial  in  the 
appellate  court  to  the  points  specified  in  his  reasons, 
though  he  is  not  restricted  to  the  evidence  or  arguments 
presented  as  to  the  same  points  in  the  probate  court.  The 
copy  should  be  served  on  the  adverse  party  by  an  officer 
authorized  to  serve  civil  process,  and  his  return  should 
be  filed  with  the  papers  in  the  case. 

due  to  M.'s  administrator,  the  land  being  liable  to  be  sold  to  satisfy  such 
balance.     Bryant  v.  Allen,  6  N.  H.  116. 

Where  a  guardian  was  licensed  to  sell  real  estate  of  his  ward,  and  the 
next  of  kin  of  the  ward  appealed  on  the  ground  that  he,  and  not  the 
ward,  was  the  owner  of  the  land,  it  was  held  that  the  question  of  title 
could  not  be  settled  in  a  probate  court,  and  that  the  appeal  could  not  be 
entertained.     Ayer  v.  Breed,  110  Mass.  548. 

1  When  a  will,  by  which  the  testator's  land  was  devised,  was  allowed 
by  the  probate  court,  it  was  held,  that  a  creditor  of  one  of  the  heirs  at 
law  of  the  testator  was  not  entitled,  merely  as  such,  to  appeal  from  the 
decree.  Otherwise,  if  the  creditor  has  attached  such  land  at  the  time  of 
the  decree  and  appeal  claimed,  in  an  action  against  the  heir.  Smith  v. 
Bradstreet,  16  Hick.  264. 

2  See  Appendix,  form  No.  84. 

3  Gen.  Sts.  c.  117,  §§  9,  10.     See  Appendix,  form  No.  85. 


APPEALS  FROM  THE  PROBATE  COURT.       293 

The  party  appealing  is  not  required  by  statute  to 
recognize  or  give  any  bond  for  the  prosecution  of  his 
appeal. 

Proceedings  ivhen  Appeal  is  omitted  to  be  taken  in  Sea- 
son. The  statute  provides  that  if  a  person  aggrieved 
omits  to  claim  or  prosecute  his  appeal,  without  default 
on  his  part,  the  supreme  court  of  probate,  if  it  appears 
that  justice  requires  a  revision  of  the  case,  may,  on 
the  petition  of  the  party  aggrieved,  and  upon  such 
terms  as  it  deems  reasonable,  allow  an  appeal  to  be  en- 
tered and  prosecuted  with  the  same  effect  as  if  it  had 
been  done  seasonably.  Such  petition  may  be  entered 
in  the  clerk's  office  at  any  time,  and  the  order  of  notice 
thereon  may  be  made  returnable  at  a  rule  day.^  A  copy 
of  the  record,  attested  by  the  register  of  probate  should 
be  filed  with  the  petition.  Such  appeal  cannot  be  al- 
lowed without  due  notice  to  the  pai'ty  adversely  inter- 
ested, nor  unless  the  petition  therefor  is  filed  within  one 
year  after  passing  the  decree  or  order  complained  of, 
except  that  if  the  petitioner  was  without  the  United 
States  at  the  time  of  passing  the  decree  or  order,  he 
may  file  his  petition  at  any  time  within  three  months 
after  his  return,  and  within  two  years  after  the  act  com- 
plained of.^  The  appeal  should  be  entered  at  the  term 
at  which  leave  is  granted.^ 

•  As  to  petition,  see  Appendix,  form  No.  86. 

2  Gen.  Sts.  c.  117,  §§  11-13.  This  provision  does  not  authorize  the 
entry  of  an  appeal  when  the  decree  of  the  court  below  has  been  executed. 
After  a  widow  lias  received  tlie  amount  of  an  allowance,  no  appeal  can 
be  taken  by  her,  nor  allowed  on  her  petition,  from  the  decree  making  the 
allowance.     Hale  v.  Hale,  1  Gray,  522. 

An  heir  at  law,  who  has  notice  of  an  appeal  taken  by  another  heir  at 
law  from  the  prol)ate  of  a  will,  and  takes  no  steps  towards  prosecuting 


'  Kohinson  v.  Durfee,  7  Allen,  212. 


294  PROCEEDINGS    IN    THE   PROBATE   COURTS. 


EFFECT   OF   THE    APPEAL. 

After  an  appeal  is  claimed  and  notice  given  at  the 
probate  office,  all  2:)roceedings  in  pursuance  of  the  order, 
sentence,  decree,  or  denial  appealed  from  cease  until  the 
determination  of  the  supreme  court  of  probate  is  had.^ 
But  if  tlie  appellant,  in  writing,  waives  his  appeal  before 
the  entry  thereof,  proceedings  may  be  had  in  the  pro- 
bate court  as  if  no  appeal  had  been  taken.^ 

THE  PROCEEDINGS  IN  THE  APPELLATE  COURT. 

Appeals  and  petitions  for  appeal  are  entered  on  a 
docket  in  the  appellate  court  with  cases  in  equity,  and 
have  the  same  rights  as  to  hearing  and  determination  as 
such  cases. 

The  supreme  court  of  probate  may  reverse  or  affirm, 
in  whole  or  in  part,  the  sentence  or  act  appealed  from, 
and  may  pass  such  decree  thereon  as  the  probate  court 

that  appeal,  cannot,  after  the  expiration  of  tliirty  days,  tliough  within  a 
year,  from  tlie  decree,  and  after  it  lias  been  affirmed  by  the  supreme 
court,  by  consent  of  the  first  appellee,  obtain  leave  to  make  a  new  appeal, 
under  this  statute,  or  to  have  the  decree  of  affirmance  set  aside.  Such 
heir  might  have  petitioned  to  become  a  party  to  the  appeal,  or  to  enter  an 
appeal  in  iiis  own  belialf,  and  then  have  prosecuted  it  to  a  final  result, 
although  the  first  appellant  had  withdrawn  his  appeal.  Kent  v.  Dunham, 
14  Gray,  279.     See  Livermore  v.  Bemis,  2  Allen,  394. 

1  Arnold  v.  Sabin,  4  Gush.  46.  But  in  case  of  an  appeal  from  a  decree 
appointing  a  special  administrator,  he  nevertheless  proceeds  in  the  execu- 
tion of  his  duties  until  it  is  otherwise  ordered  by  the  supreme  court  of 
probate.  And  an  appeal  from  a  decree  making  an  allowance  to  the  widow 
or  children  of  the  deceased,  from  the  income  of  the  estate  in  the  hands 
of  a  special  administrator,  will  not  prevent  the  payment  of  the  allowance, 
if  the  petitioner  gives  bond  to  the  special  administrator,  with  sureties 
approved  by  the  judge  conditioned  to  repay  the  same,  if  the  decree  is 
reversed.     Gen.  Sts.  c.  94,  §§  6,  10. 

2  See  Appendix,  form  No.  87. 


APPEALS  FROM  THE  PROBATE  COURTS.       295 

or  judge  ought  to  have  passed,  and  remit  the  case  for 
further  proceedings,  or  take  any  other  order  therein  as 
law  and  justice  may  require. 

If,  upon  the  hearing,  any  question  of  fact  occurs 
proper  for  trial  by  jury,  the  court  may  cause  it  to  be 
so  tried  upon  an  issue  formed  for  that  purpose  under 
the  direction  of  the  court.^ 

The  appeal  gives  no  jurisdiction  to  the  appellate  court 
to  proceed  in  the  settlement  of  an  estate,  but  only  to 
reconsider  the  order  appealed  from  ;  and  its  judgment 
is  carried  into  effect  by  the  probate  court,  whose  juris- 
diction over  the  cause  and  the  parties  is  not  taken  away 
by  the  appeal.^ 

An  appeal  lies  from  the  decision  of  a  single  judge  of 
the  supreme  court  of  probate  to  the  full  court  in  matter 
of  fact,  as  well  as  of  law.^ 

COMPLAINT  FOU   AFFIRMATION  OF  DECREE. 

If  the  appellant  fails  to  enter  and  prosecute  his  appeal, 
the  supreme  court  of  probate  may,  upon  the  complaint 
of  any  j)erson  interested,  affirm  the  former  sentence,  or 
take  such  other  order  as  law  and  justice  require.  Such 
complaint  must  be  in  writing,  and  should  set  forth  the 
fact  that  the  appeal  was  taken,  and  that  the  appellant  has 
failed  to  enter  and  prosecute  it,  and  pray  for  an  affirma- 
tion of  the  decree  and  for  an  allowance  of  costs.  With 
the  complaint  must  also  be  filed  a  copy  of  the  decree 
appealed  from,  and  of  the  papers  in  the  case,  attested  by 
the  register  of  probate* 

1  Gen.  Sts.  c.  117,  §§  14,  16,  18. 

2  Dunham  v.  Dunliam,  16  Gray,  578. 
8  Wright  V.  Wriglit,  13  Allen,  207. 

<  Gen.  Sts.  c.  117,  §  17.    See  Appendix,  form  No.  88. 


CHAPTER  XXI. 

ADOPTION   OF   CHILDREN  AND    CHANGE  OF  NAME. 


ADOPTION. 


[Stat.  1876,  c.  213.] 


Sect.  1.  Any  person  of  the  age  of  twenty-one  years 
or  upwards,  may  petition  the  probate  court  in  the  county 
of  his  residence,  for  leave  to  adopt  as  his  child  any  other 
person,  younger  than  himself,  except  as  hereinafter  pro- 
vided. If  the  petitioner  have  a  husband  or  wife  living, 
who  is  competent  to  join  in  such  petition,  the  prayer  of 
the  petition  shall  not  be  granted  unless  the  husband  or 
wife  joins  therein,  and  upon  adoption  the  child  shall  be 
deemed  the  child  and  heir  of  both. 

Sect.  2.  No  decree  for  such  adoption  shall  be  made, 
except  as  hereinafter  provided,  without  the  written  con- 
sent of  the  child,  if  above  the  age  of  fourteen  years ;  and 
also,  of  the  lawful  parents,  or  surviving  parent,  —  of  the 
parent  having  the  lawful  custody  of  the  child,  if  the  par- 
ents be  divorced,  or  are  living  separate,  —  of  the  guardian 
of  the  child,  if  any,  —  of  the  mother  only  of  the  child  if 
illegitimate,  —  or  of  the  person  or  persons  who  shall  be 
substituted  for  either  of  the  above  named,  by  the  pro- 
visions of  this  act.  No  person  whose  consent  is  hereby 
made  requisite  shall  be  debarred  from  being  the  adopt- 
ing parent  in  said  proceedings.     In  case  of  a  subsequent 


ADOPTION    OF   CHILDREN    AND    CHANGE   OF   NAME.      297 

adoption,  the  consent  of  the  previous  adopting  parent 
shall  also  be  required  :  provided,  however,  that  the  con- 
sent of  the  persons  hereinbefore  named  shall  not  be  re- 
quired in  the  cases  hereinafter  excepted. 

Sect.  3.  The  consent  of  the  persons  other  than  the 
child  named  in  the  preceding  section,  shall  not  be  requi- 
site, if  the  person  to  be  adopted  be  of  adult  age. 

Sect.  4.  The  consent  of  any  person  other  than  the 
child  named  in  sections  one  and  two,  shall  not  be  neces- 
sary, if  such  person  be  adjudged  by  the  court  hearing 
the  petition  to  be  hopelessly  insane,  or  is  imprisoned  in 
the  state  prison  or  a  house  of  correction  in  this  State, 
under  sentence  for  a  term  of  which  more  than  three 
years  remain  unexpired  at  the  date  of  the  petition,  nor 
if  he  has  wilfully  deserted  and  neglected  to  provide 
proper  care  and  maintenance  for  such  child  for  two 
years  next  preceding  the  date  of  the  petition ;  nor  if 
he  has  suffered  such  child  to  be  supported  by  any  chari- 
table institution  incorporated  by  law,  or  as  a  pauper  by 
any  city  or  town,  or  by  the  State,  for  more  than  two 
years  continuously,  prior  to  the  petition,  nor  if  he  has 
been  convicted  of  being  a  common  drunkard  and  neg- 
lects to  provide  proper  care  and  maintenance  for  such 
child  ;  nor  if  such  person  has  been  convicted  of  being 
a  common  night-walker,  or  of  being  a  lewd,  wanton,  and 
lascivious  person,  and  neglects  to  provide  proper  care 
and  maintenance  for  such  child :  provided,  however,  that 
a  giving  up  in  writing  of  the  child,  for  the  purpose  of 
adoption  to  any  charitable  institution  incorporated  by 
law,  shall  operate  as  a  consent  to  any  adoption  subse- 
quently approved  by  such  institution.  Notice  of  said 
petition  shall  be  given  to  the  visiting  agent  of  the  board 
of  state  charities,  in  case  the  child  is  supported  as  a  pau- 
per by  any  city  or  town,  or  by  the  State. 


298      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

Sect.  5.  Whenever  the  written  consent  required  hy 
the  preceding  sections  is  not  submitted  to  the  court  with 
the  petition,  the  court  shall  order  notice,  by  personal 
service  on  the  parties,  of  a  copy  of  the  petition  and 
order  thereon,  or,  if  they  be  not  found  within  the  State, 
by  publication  thereof  once  a  week,  for  three  successive 
weeks,  in  such  newspaper  or  newspapers  as  the  court 
shall  order,  the  last  publication  to  be  seven  days  at  least 
before  the  time  appointed  for  the  hearing.  And  in  any 
case  the  court  may  require  such  additional  notice  and 
consent  as  may  be  deemed  proper. 

Sect.  6.  Any  person  not  appearing  at  the  appointed 
time  and  place,  and  then  objecting  to  such  adoption, 
shall  be  held  to  have  consented  thereto,  except  as  pro- 
vided in  section  twelve  of  this  act ;  but  if  no  one  con- 
sents or  appears,  the  court  may,  if  it  see  fit,  appoint  a 
guardian  ad  litem,  with  power  to  give  or  withhold  con- 
sent. 

Sect.  7.  If  satisfied  of  the  identity  and  relations  of 
the  parties,  and  that  the  petitioner  is  of  sufficient  ability 
to  bring  up  the  child,  and  furnish  suitable  nurture  and 
education,  and  that  it  is  proper  such  adoption  should 
take  place,  the  court  shall  make  a  decree,  by  which, 
except  as  regards  succession  to  property,  all  rights, 
duties,  responsibilities  and  other  legal  consequences, 
including  settlement,  of  the  natural  relation  of  child 
and  parent,  shall  thenceforward  exist  between  the  child 
and  the  petitioner  and  his  kindred,  and  shall,  except  as 
regards  marriage,  incest,  or  cohabitation,  terminate  be- 
tween the  person  so  adopted  and  his  natural  parents 
and  kindred,  or  any  previous  adopting  parent ;  and  the 
court  may  also  decree  such  change  of  name  as  the  peti- 
tioner may  request :  provided,  hoivever,  that  if  tlie  per- 
son so  adopted  be  of  adult  age,  he  shall  not  thereby  be 


ADOPTION   OF   CHILDREN   AND    CHANGE   OF   NAME.      299 

freed  from  the  obligations  of  section  four  of  chapter 
seventy  of  the  General  Statutes.^ 

Sect.  8.  As  to  the  inheritance  of  property,  any  per- 
son adopted  in  accordance  with  the  provisions  of  this  act, 
shall  take  the  same  share  which  he  would  have  taken 
if  born  to  said  adopting  parent  in  lawful  wedlock,  of  any , 
property  which  such  parent  could  have  devised  by  will. 
In  respect  to  inheritance  also,  he  shall  stand  in  regard 
to  the  legal  descendants,  but  to  no  other  of  the  kindred, 
of  his  adopting  parent  in  the  same  position  as  if  born  to 
him  in  lawful  wedlock.  In  case  the  person  adopted  dies 
intestate,  his  property,  acquired  by  himself,  or  by  gift  or 
inheritance  from  his  adopting  parent,  or  the  kindred  of 
such  parent,  shall  be  distributed  according  to  the  pro- 
visions of  chapters  ninety-one  and  ninety-four  of  the 
General  Statutes,  among  the  persons  who  would  have 
been  his  kindred  if  he  had  been  born  to  his  adopting 
parent  in  lawful  wedlock ;  and  an}^  property  received 
by  gift  or  inheritance  from  his  natural  parents  or  kin- 
dred, shall  be  distributed  in  tlie  same  manner  as  if  no 
act  of  adoption  had  taken  place ;  such  distribution  to  be 
ascertained  in  such  manner  as  the  court  may  decree.  No 
person  shall,  Ly  being  adopted,  lose  his  right  to  inherit 
from  his  natural  parents  or  kindred. 

Sect.  9.  The  term  "child,"  or  its  equivalent,  in  any 
grant,  trust-settlement,  entail,  devise,  or  bequest,  shall 
be  held  to  include  any  child  adopted  by  the  settler, 
grantor,  or  testator,  unless  the  contrary  plainly  appears 
by  the  terms  thereof ;  but  in  no  other  case  shall  a  child 
by  adoption  have,  under  such  an  instrument,  the  rights 
of  a  child  born  in  lawful  wedlock  to  the  adopting  parent, 
unless  it  plainly  appears  to  have  been  the  intention  of 

^  Providing  f(jr  tlie  svipport  of  punr  and  indigent  persons  by  tlieir 
kindred. 


800      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

the  settler,  prrantor,  or  testator  to  include  an  adopted 
child  :  provided,  however,  that  nothing  in  this  act  shall 
be  construed  to  restrict  any  right  to  the  succession  to 
property  "which  ma}'-  have  vested  in  any  person  already 
adopted  in  accordance  with  the  laws  of  this  Common- 
wealth. 

Sect.  10.  No  person  shall  adopt  as  a  child,  his  or 
her  wife  or  husband,  brother,  sister,  uncle,  or  aunt,  either 
of  the  whole  or  half  blood ;  nor  any  married  woman  with- 
out the  written  consent  of  her  husband.  No  act  of  adop- 
tion, however,  shall  be  held  to  place  the  adopting  parent 
or  adopted  child  in  any  relation  to  any  person  except 
such  parent  or  child  different  from  that  before  existing, 
as  regards  marriage,  or  as  respects  rape,  incest,  cohabita- 
tion, or  other  sexual  crime  committed  by  either  or  both: 
provided,  that  no  marriage  shall  be  contracted  between 
any  person  and  his  or  her  adopted  child. 

Sect.  11.  Anyinhabitantof  any  other  State,  adojoted 
as  a  child  in  accordance  with  the  laws  thereof,  shall,  upon 
proof  of  such  fact,  be  entitled  in  this  Commonwealth  to 
the  same  rights,  as  regards  succession  to  propert}',  as  he 
would  have  enjoyed  in  the  State  where  such  act  of  adop- 
tion was  executed,  except  in  so  far  as  they  conflict  with 
the  provisions  of  this  act.  Any  child  adopted  in  this 
Commonwealth  in  accordance  with  the  laws  thereof, 
shall  retain  the  rights  thereby  conferred  upon  him,  so 
far  as  the  jurisdiction  of  this  Commonwealth  extends. 
In  case  a  person  not  an  inhabitant  of  this  State  desires 
to  adopt  a  child  residing  here,  the  petition  may  be  made 
to  the  probate  court  in  the  county  where  the  child  re- 
sides. 

Sect.  12.  Any  person  aggrieved  by  an  order,  denial, 
or  decree  of  the  probate  court  under  the  provisions  of 
this  act,  may  appeal  therefrom  to  the  supreme  judicial 


ADOPTION    OF    CHILDREN    AND    CHANGE    OF    NAME.       301 

court,  in  like  manner  as  appeals  may  be  taken  from 
other  decrees  of  the  probate  court ;  and  the  supreme 
judicial  court,  in  its  discretion,  may  allow  any  parent 
who  had  no  personal  notice  of  the  proceedings  before 
the  decree,  to  appeal  at  any  time  within  one  year  after 
actual  notice  thereof :  provided,  however,  that  such  par- 
ent, so  appealing,  shall  first  make  oath  that  he  was  not, 
at  the  time  of  the  petition  for  adoption,  undergoing  im- 
prisonment as  specified  in  section  four,  or  that,  if  so 
imprisoned,  he  has  since  been  pardoned  on  the  ground 
of  innocence,  or  has  had  his  sentence  reversed. 

Sect.  13.  In  case  of  a  second  adoption,  all  the  legal 
consequences  of  the  first  decree  shall  terminate,  except 
so  far  as  any  interest  in  property  shall  have  vested  in 
the  child,  and  a  decree  to  that  effect  shall  be  entered  on 
the  records  of  the  court. 


CHANGE   OF   NAJEES. 
[General  Statutes,  Chap.  110.] 

Sect.  11.  Applications  for  change  of  names  of  per- 
sons may  be  heard  and  determined  by  the  probate  courts 
in  the  several  counties.  No  lawful  change  of  the  name 
of  a  person,  except  a  woman  upon  her  marriage  or  di- 
vorce, shall  be  made  in  this  State,  unless  for  sufficient 
reason  consistent  with  the  public  interest  and  satisfactory 
to  said  court  in  the  county  where  the  party  resides. 

Sect.  12.  Before  decreeing  a  change  of  name,  except 
as  is  provided  in  the  following  section,  the  court  shall 
require  public  notice  of  the  application  therefor  to  be 
given,  that  all  persons  may  appear  and  show  cause,  if 
any  they  have,  why  the  same  should  not  be  granted. 
The  court  shall  also  require  public  notice  to  be  given  of 


302      PROCEEDINGS  IN  THE  PROBATE  COURTS. 

the  change  decreed,  and  on  return  of  proof  thereof  may 
grant  a  certificate,  under  the  seal  of  the  court,  of  the 
name  the  party  is  to  bear,  and  which  shall  thereafter  be 
his  legal  name. 

Sect.  13.  If,  in  a  petition  for  the  adoption  of  a  child, 
a  change  of  the  child's  name  is  requested,  the  court,  upon 
decreeing  the  adoption,  may  also  decree  such  cliange  of 
name,  and  grant  a  certificate  thereof,  without  the  notices 
required  by  the  preceding  section. 

Sect.  14.  Each  judge  shall  annually,  in  the  month 
of  December,  make  a  return  to  the  office  of  the  Secretary 
of  the  Commonwealth  of  all  changes  of  names  made  in 
his  court  under  this  chapter;  and  the  same  shall  be 
published  in  a  tabular  form  with  the  statutes  of  the 
following  year. 


appe:^dix. 


PRDfTED  forms  of  petitions,  &c.,  adapted  to  most  of  the 
proceedings  in  the  probate  courts,  are  furnished  at  the  pro- 
bate offices  to  persons  having  occasion  to  use  them.  The 
forms  contained  in  this  Appendix  generally  relate  to  pro- 
ceedings for  which  blanks  are  not  so  furnished.  Some  of 
the  printed  blanks,  however,  such  as  petitions  for  the  probate 
of  wills,  and  for  the  appointment  of  administrators  and 
guardians,  are  necessarily  very  general  in  form,  and  are  to 
be  variously  filled,  as  may  be  required  by  the  facts  of  each 
case.  Forms  of  these  petitions  are  introduced  here,  adapted 
to  supposed  cases,  showing  the  manner  in  which  they  are  to 
be  filled  under  the  different  circumstances  that  may  exist  so 
far  as  they  can  be  anticipated.  The  printed  forms  now  ia 
use  were  j^repared  by  a  committee  of  the  judges  of  the  pro- 
bate courts,  and  have  been  recognized  by  an  order  of  the 
Supreme  Judicial  Court  as  standard  forms,  to  be  adopted 
and  used  in  all  the  probate  courts  of  this  State.  They 
should,  therefore,  be  used  in  all  the  proceedings  to  which 
they  apply. 


304  APPENDIX. 


FORMS  OF  PETITIONS,  &c. 


[No.  1.] 
Petition  for  Probate  of  Will  presented  by  the  Executor. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and 
for  the  county  of  M. 

Respectfully  represents  A.  B.,  of  L.,  in  the  county  of  M., 
that  C.  D.,  who  last  dwelt  in  S.,  in  said  county  of  M.,  died 
on  tlie day  of ,  in  the  year  of  our  Lord  one  thou- 
sand eight  hundred  and ,  possessed  of  goods  and  estate 

remaining  to  be  administered,  leaving  a  widow  whose  name 
is  H.  D.,  and  as  his  only  heirs  at  law  and  next  of  kin,  the 
persons  whose  names,  residence,  and  relationship  to  the 
deceased  are  as  follows,  viz. 

J.  D.  and  S.  D.,  children  of  said  deceased. 

That  said  deceased  left  a  will  (and  codicil,  if  such  is  the 
fact)^  herewith  presented,  wherein  your  petitioner  is  named 
executor. 

Wherefore  your  petitioner  prays  that  said  will  may  be 
proved  and  allowed,  and  letters  testamentary  granted  to 
him. 

Dated  this day  of ,  A.  D.  18  — . 

A.  B. 


[No.  2.] 

Assent  of  Persons  interested  to  be  annexed  to  the  foregoing 
Petition. 

The  undersigned,  being  all  the  heirs  at  law  and  next  of 
kin,  and  the  only  parties  interested  in  the  foregoing  petition, 
desire  the  same  may  be  granted,  without  further  notice. 

J.  D. 

S.  D. 

H.  D. 


APPENDIX.  305 


[No.  3.] 

Petition  for  Probate  of  a  Will  presented  by  a  Person  other 
than  the  Executor. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and 
for  the  county  of  M. 

Respectfully  represents  H.  D.,  of  G.,  in  the  county  of  B., 
that  C.  D.,  who  last  dwelt  in  S.,  in  said  county  of  M.,  died 
on  the day  of ,  in  the  year  of  our  Lord  one  thou- 
sand eight  hundred  and ,  possessed  of  goods  and  estate 

remaining  to  be  administered,  leaving  no  widow,  and  as  his 
only  heirs  at  law  and  next  of  kin  the  persons  whose  names, 
residence,  and  relationship  to  the  deceased  are  as  follows, 
viz. 

J.  D.,  of ,  in  the  State  of  New  York,  C.  D.,  of  said 

C,  and  H.  D.,  your  petitioner,  all  of  them  brothers  of  said 
deceased. 

That  said  deceased  left  a  will  (and  codicil)  herewith  pre- 
sented, wherein  no  person  is  named  executor  (or,  A.  B.,  of 

,  is  named  executor  but  that  said  A.  B.  has  deceased  ; 

or,  refuses  to  accept  said  trust,  as  by  his  renunciation  in 
writing  hereto  annexed  fully  appears  ;  or,  is  a  minor,  and 
therefore  incompetent  to  administer,  &c.). 

Wherefore  your  petitioner  prays  that  said  Avill  may  be 
proved  and  allowed,  and  lettei-s  of  administration  with  the 
will  annexed  granted  to  him. 

Dated  this day  of ,  A.  D.  18  — . 

H.  D. 

Assent  of  Persons  interested  to  be  annexed  to  the  foregoing 
Petition. 

The  undersigned,  being  all  the  heirs  at  law  and  next  of 
kin,  and  the  only  parties  interested  in  the  foregoing  petition, 
desire  the  same  may  be  granted,  without  further  notice. 

J.  D. 
C.  D. 
H.  D. 
20 


306  APPENDIX. 


[No.  4.] 
Refusal  of  Executor  to  accept  the  Trust. 

To  the  Honorable  the  Juclge  of  the  Probate  Court  in  and 
for  the  county  of  H. 

The  undersigned,  who  is  named  in  the  last  will  and  testa- 
ment of  C.  D.,  late  of  S.,  in  the  county  of  H.,  deceased,  to 
be  the  executor  thereof,  respectfully  represents  that  he  de- 
clines to  accept  said  trust,  and  prays  that  administration 
with  the  will  annexed  of  the  estate  of  the  said  C.  D.  may 
be  granted  to  the  person  or  persons  by  law  entitled  to  the 

same  (or,  to  E.  F.,  of ,  &c.). 

Dated  this day  of ,  A.  D.  18  — . 

A.  B. 


[No.  5.] 
Summons  for  Attesting  Witnesses. 

Commonwealth  of  Massachusetts. 

ss. 


To  A.  B.,  S.  R.,  and  G.  F.,  all  of  S.,  in  said  county.  Greet- 
ing:— 

You  are  hereby  required,  in  the  name  of  the  Common- 
wealth of  Massachusetts,  to  make  your  appearance  at  the 

probate  court  to  be  holden  at ,  in  said  county,  on  the 

day  of ,  then  and  there  to  give  evidence  of  what 

you  know  relating  to  the  execution  of  a  certain  instrument 
purjiorting  to  be  the  last  will  and  testament  of  C.  D.,  late 

of  S.,  in  the  county  of  ,  aforesaid,  deceased.     Hereof 

fail  not,  as  you  will  answer  your  default  under  the  pains  and 
penalty  of  the  law  in  that  behalf  provided. 

Dated  at  ,  in  said  county  of  ,  this day  of 

,  in  the  year  of  our  Lord  one  thousand  eight  hundred 

and . 

J.  S.,  Justice  of  the  Peace. 


APPENDIX.  307 

[No.  6.] 
Petition  for  Probate  of  a  Will  accidentally  destroyed. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and 
for  the  county  of . 

Respectfully  represents  A.  B.,  of  S.,  in   said  county  of 

,  that  C.  D.,  who  last  dwelt  in  said  S.,  died  on  the 

day  of  ,  in  the  year  of  our  Lord  one  thousand   eight 

hundred  and ,  possessed  of  goods  and  estate  remaining 

to  be  administered,  leaving  a  widow  whose  name  is  H.  D., 
and  as  his  only  heirs  at  law  and  next  of  kin  the  persons 
whose  names,  residence,  and  relationship  to  the  deceased  are 
as  follows,  viz. 

L.  D,  and  J.  D.,  both  of  said  S.,  children  of  said  deceased. 

That  said  deceased  left  a  will,  wherein  your  petitioner  was 
named  executor ;  that  said  will  was  not  revoked  by  said 
C.  D.,  and  was  in  his  possession  at  the  time  of  his  death,  but 

that  since  the  death  of  said  C.  D.,  to  wit,  on  the day 

of last  past,  the  said  will  was  accidentally  burnt  and 

destroyed. 

Wherefore  yoiir  petitioner  herewith  presents  a  true  and 
exact  copy  of  said  will  destroyed  as  aforesaid,  being  the 
written  paper  hereto  annexed  marked  A,  and  prays  that 
sai<l  last  will  of  said  C.  D.,  as  written  and  expressed  in  the 
said  paper  marked  A,  may  be  proved  and  allowed,  and 
letters  testamentary  granted  to  him. 

Dated  this day  of ,  A.  D.  18 — . 

A.  B. 

Assent  of  Persons  interested  to  be  annexed  to  the  foregoing 
Petition. 

The  undersigned,  being  all  the  heirs  at  law  and  next  of 
kin,  and  the  only  parties  interested  in  the  foregoing  petition, 
desire  the  same  may  be  granted,  without  further  notice. 

J.   D. 

L.  D. 

H.  D. 


308  APPENDIX. 

[No.  7.] 
Decree  admitting  to  Probate  a  Will  accidentally  destroyed. 

^  ss.  At  a  probate  court  holden,  &c. 

On  the  petition  of  A.  B.,  of  S.,  in  the  county  of ,  rep- 
resenting that  CD., late  of  said  S.,  deceased,  left  a  will  exe- 
cuted in  due  form  of  law,  and  that  said  will  M^as  accidentally 
destroyed  after  the  death  of  said  C.  D.,  and  that  the  paper 
writing  annexed  to  said  petition  marked  A,  is  a  true  copy  of 
said  will,  and  praying  that  the  will  of  said  C.  D.,  as  written 
and  expressed  in  said  paper  marked  A,  may  be  proved  and 
allowed,  and  letters  testamentary  issued  to  him,  the  executor 
therein  named ;  and  the  heirs  at  law,  next  of  kin,  and  all 
other  persons  interested  having  been  duly  notified  accord- 
ing to  the  order  of  court  to  appear  and  show  cause,  if  any 
they  have,  against  the  same.  And  it  appearing  that  said 
C.  D.  did  legally  execute  a  will,  of  which  the  said  paper 
marked  A  is  a  true  copy,  and  that  said  testator  was,  at  the 
time  of  making  the  same,  of  fiall  age  and  sound  mind,  and 
that  said  will  was  accidentally  destroyed  after  the  death  of 
said  C  D.,  and  that  said  petitioner  is  a  competent  person 
to  be  appointed  to  said  trust. 

It  is  therefore  decreed,  that  the  will  of  said  deceased,  as 
written  and  expressed  in  said  paper  marked  A,  be  approved 
and  allowed  as  his  last  will  and  testament,  and  letters  testa- 
mentary be  issued  to  said  petitioner,  he  first  giving  bond 
with  sufiicient  sureties  for  the  due  performance  of  said  trust. 

M.  S.,  Judge  of  Probate  Court. 


[No.  8.] 
Petition  for  Probate  of  a  Niincupative  Will. 

To  the  Honorable  the  Judge  of  the  Probate  Court  m  and 
for  the  county  of . 

Respectfully  represents  A.  D.,  of,  &c.,  that  C.  D.,  who  last 

dwelt  in ,  in  said  county  of ,  died  at ,  on  the 

day  of  ,  in  the  year  of  our  Lord  one  thousand 


APPENDIX.  309 

eight  hundred  and  ,  possessed  of  goods  and  estate  re- 
maining to  be  administered,  leaving  a  widow,  and  as  his 
only  heirs  at  law  and  next  of  kin  the  persons  whose  names, 
residence,  and  relationship  to  the  deceased  are  as  follows, 
viz.  &c.,  &c. ;  that  said  C.  D.,  at  the  time  of  his  death,  was 

a  mariner  at  sea,  on  board  the  ship ,  in  the  coarse  of  a 

voyage  from to  (or,  was  a  soldier  in  actual  ser- 
vice in  the regiment,  &c.)  ;  that  while  on  such  voyage 

(or,  in  such  actual  service),  said  deceased  made  a  nuncupa- 
tive will,  in  the  presence  and  hearing  of  E.  F.  and  G.  H.,  of, 
&c.,  whereby  he  disposed  of  his  wages  and  other  personal 
estate  in  the  manner  following  (or,  as  is  fully  set  forth  in 
the  paper  hereto  annexed). 

Wherefore  your  petitioner  prays  that  said  nuncupative 
will  may  be  proved  and  allowed,  and  letters  testamentary 
issued  to  him,  the  executor  therein  named. 
Dated,  &c. 

A.  D. 


[No.  9.] 
Decree  admitting  Nuncupative  Will  to  Probate. 

,  ss.  At  a  probate  court  holden,  &c. 

On  the  petition  of  A.  D.,  of,  &c.,  praying  that  the  nuncu- 
pative will  of   C.  D.,  late  of  ,  in  said  county  of , 

deceased,  may  be  proved  and  allowed,  and  letters  testa-- 
mentary  issued  to  him  the  executor  therein  named,  and  the 
heirs  at  law,  next  of  kin,  and  all  other  persons  interested, 
having  been  duly  notified  according  to  the  order  of  court, 
to  a}»pear  and  show  cause,  if  any  they  have,  against  the 
same  ;  and  it  appearing  by  the  testimony  in  court  of  E.  F. 

and  G.  H.,  of,  &c.,  that  said  C.  D.,  at ,  on  the day 

of ,  A.  D.  18 — ,  in  their  pi-esence  and  hearing,  did  de- 
clare and  pronounce  the  following  words,  to  wit,  &c.,  cfcc. ; 
and  it  further  ap])earing  that  said  C.  D.,  at  the  time  of  de- 
claring and  pronouncing  the  same,  was  a  mariner  at  sea,  and 

on  a  voyage  from to ,  and  was  of  sound  mind,  and 

that,  by  the   words  so  declared  and  pronounced,  the  said 


310  APPENDIX. 

C.  D.  intended  to  make  a  testamentary  disposition  of  the 
personal  estate  therein  described,  and  that  said  petitioner  is 
a  competent  ])erson  to  be  appointed  to  said  trust. 

It  is  tlierefore  decreed,  that  said  testamentary  words  be 
approved  and  allowed  as  the  nuncupative  will  of  said  de- 
ceased, and  letters  testamentary  be  issued  to  said  petitioner, 
ifcc.  J.  S.,  Judge  of  Probate  Court. 


[No.  10.] 

Petition  that  one  having  Custody  of  a  'Will  may  he  died  to 

deliver  it  into  the  Probate  Court. 

To  the  Honorable  the  Judge  of  the  Probate  Court  for  the 
county  of . 

Respectfully  represents  A.  B.,  of  S.,  in  said  county,  that 
C.  D.,  late  an  inhabitant  of  said  S.,  has  lately,  to  wit,  on  the 

day  of last  past,  deceased  ;  that  the  said  C.  D.,  at 

some  time  pi'evious  to  his  death,  made  and  executed  in  due 
form  of  law  his  last  will  and  testament,  and  gave  the  same 
to  the  custody  of  one  T.  T.,  of  said  S. ;  that  said  will  is  now 
in  the  custody  of  said  T.  T.,  and  that  said  T.  T.  has  had  no- 
tice for  more  than  thirty  days  of  the  death  of  said  C.  D.,  but 
has  neglected  and  still  neglects  to  deliver  the  same  into  the 
probate  court,  or  to  the  executors  named  in  said  will,  as  by 
law  he  is  required  to  do  ;  that  your  petitioner  has  reason  to 
believe,  and  does  believe,  that  he  is  made  a  legatee  in  and 
by  said  will.  He  therefore  prays  that  said  T.  T.  may  be 
cited  to  deliver  said  Avill  into  the  probate  court,  and  that 
such  further  proceedings  may  be  had  in  the  premises  as  law 
and  justice  may  require. 

Dated  this day  of ,  A.  D.  1861. 

A.  B. 

[No.  11.] 
Complaint  against  one  suspected  of  retaitiing  or  concealing 

a  Will. 

To  the  Honorable  the  Judge  of  the  Probate  Court  for  the 
county  of . 


APPENDIX.  311 

A.  B.,  of  S.,  in  said  county,  on  oath  complains  that  she 
has  cause  to  believe,  and  does  believe,  that  T.  T.,  of  said  S., 
has  retained  and  concealed,  and  is  now  retaining  and  con- 
cealing, with  intent  to  hinder  and  2:)revent  the  probate 
thereof,  a  certain  instrument  made  and  executed  in  due 
form  of  law  by  C.  B.,  late  of  said  S.,  deceased,  as  and  for 
his  last  will  and  testament  {07%  that  T.  T.,  J.  T.,  and  D.  T., 
all  of  said  S.,  have  combined  and  conspired  among  them- 
selves, and  are  now  so  combined  and  conspired,  to  retain 
and  conceal,  with  intent,  &c.) ;  that  your  complainant  is  the 
widow  of  said  C.  B.,  and  is  interested  in  the  estate  of  said 
deceased.  Wherefore  she  prays  that  said  T.  T.  may  be  cited 
to  appear  and  answer  to  this  complaint,  and  that  such  fur- 
ther proceedings  may  be  had  relative  thereto  as  the  law 
requires. 

A.  B. 

,  ss.     Subscribed  and  sworn  to  this day  of , 


A.  D.  18 — ,  before  me, 

L.  N.,  Justice  of  the  Peace. 


[No.  12.] 

Citation  on  the  foregoing  Complaint, 

Commonwealth  of  Massachusetts. 

,  ss.  Probate  Court. 

To  T.  T.,  of  S.,  in  said  county. 

Whereas,  complaint  on  oath  has  been  made  to  said  court 
by  A.  B.,  of  said  S.,  who  claims  to  be  interested  in  the  estate 
of  C.  B.,  late  of  said  S.,  deceased,  that  she  has  reason  to 
believe,  and  does  believe,  that  you  have  retained  and  con- 
cealed, and  are  now  retaining  and  concealing,  with  intent  to 
hinder  and  prevent  the  probate  thereof,  a  certain  instrument 
made  and  e.vecuted  by  said  C.  D.  in  due  form  of  law  as  and 
for  his  last  will  and  testament. 

You  are  hereby  cited  to  appear  at  a  probate  court  to  be 

holden  at ,  in  and  for  said  county  of ,  on  the 

day  of next,  at o'clock  in  the  forenoon,  to  be  then 


312  APPENDIX. 

and  there  examined  on  oath  upon  the  matter  of  said  com- 
plaint. 

And  said  A.  B.  is  hereby  directed  to  cause  said  T.  T.  to 
be  notified  of  tlie  time  and  place  appointed  for  said  examina- 
tion, by  serving  him  with  a  copy  of  this  order days  at 

least  before  said  court. 

Witness,  J.  S.,  Esquire,  judge  of  said  court,  this day 

of ,  A.  D.  18—. 

S.  W.,  Register. 

(The  above  general  form  may  be  adaj^ted  to  all  cases  in 
which  citations  are  required.) 


[No.  13.  J 

Return  to  he  made  on  Citations. 

I  have  served  the  foregoing  citation  as  therein  ordered. 

A.  B. 

,  ss. ,  A.  D.  18 — .  Then  personally  ap- 
peared the  above-named  A.  B.,  and  made  oath  that  the  above 
return  by  him  subscribed  is  true.         Before  me, 

L.  N.,  Justice  of  the  Peace. 


[No.  14.] 

Warrant  to  commit  a  Person  complained  of  for  retaining 
and  concealing  a  Will. 

Commonwealth  of  Massachusetts. 

,  ss.  To  the  sheriff  of  the  coimty  of ,  his  depu- 
ties, or  either  of  the  constables  of  the  town  of ,  in  said 

county,  and  to  the  keeper  of  the  jail  in  said  county, 

Greeting. 

Whereas,  complaint  was  made  to  the  probate  court 
holden,  &c.,  by  A.  B.,  of  S.,  in  said  county,  who  claims  to 
be  interested  in  the  estate  of  C.  D.,  late  of  said  8.,  de- 
ceased, that  T.  T.,  of  said  S.,  had  retained  and  concealed, 
and  was  then  retaining  and  concealing,  a  certain   instru- 


APPENDIX.  313 

ment  made  and  executed  in  due  form  of  law  by  said  C. 
D.,  as  and  for  his  last  will  and  testament,  with  intent  to 
hinder  and  prevent  the  probate  thereof,  whereupon  said  T. 
T.  was  duly  cited  to  appear  and  answer  thereto ;  and  whereas, 
said  T.  T.  refuses  so  to  appear  and  submit  to  examination 
{or,  to  answer  interrogitories  lawfully  propounded  to  him) 
touching  the  matter  of  said  complaint,  and  is  thereupon 
ordered  to  be  committed  to  the  jail  in  said  county,  there  to 
remain  in  close  custody  until  he  submits  to  the  order  of  the 
court. 

You  and  each  of  you  are  therefore  required,  in  the  name 
of  the  Commonwealth  of  Massachusetts,  to  take  the  body  of 
the  said  T.  T.,  and  convey  him  to  the  jail  in  said  county,  and 
deliver  him  to  the  keeper  thereof,  and  make  return  of  this 
precept  with  your  doings  thereon. 

And  you,  the  said  keeper,  in  the  name  of  the  Common- 
wealth aforesaid,  are  hereby  required  to  receive  said  T.  T, 
into  your  custody  in  said  jail,  and  him  there  safely  keep 
until  he  shall  consent  to  be  examined  and  answer  interro- 
gatories upon  oath  as  aforesaid,  or  until  he  be  otherwise 
discharged  in  due  course  of  law.  Hereof  fail  not  at  your 
peril. 

Given  under  my  hand  and  the  seal  of  said  court  this 

day  of ,  A.  D.  18—. 

J.  S.,  Judge  of  Probate  Court. 


[No.  15.  J 

Petition  for  Administration  by  'Widow,  the  next  of  JSin 
being  incompetent. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and 
for  the  county  of  B. 

Respectfully  represents  A.  D.,  of  S.,  in  the  county  of  B., 

that  C.  D.,  who  last  dwelt  in  said  S.,  died  on  the day 

of ,  in  the  year  of  our  Lord  eighteen  hundred  and , 

intestate,  possessed  of  goods  and  estate  remaining  to  be  ad- 
ministered, leaving  as  his  only  next  of  kin  tlie  })ersons  whose 
names,  residence,  and  relationship  to  the  deceased  are  as  fol- 
lows, viz. 


314  APPENDIX. 

L.  D.,  C.  A.  D.,  and  J.  D.,  cliildren  of  said  deceased,  and 
each  of  them  a  minoi'  i;nder  the  age  of  twenty-one  years. 

That  your  petitioner  is  the  widow  of  said  deceased,  and  is 
entitled  to  take  such  administration. 

Wherefore  she  prays  that  she  may  be  appointed  adminis- 
tratrix of  the  estate  of  said  deceased. 

Dated  this day  of ,  A.  D.  18—. 

A.  D. 


[No.  16.] 

Petition  for  Administration  by  next  of  EXn^  the  'Widow 
assenting. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and 
for  the  county  of  S. 

Respectfully  represents  L.  D.,  of  D.,  in  the  county  of  B., 
that  C.  D.,  who  last  dwelt  in  C,  in  said  county  of  S.,  died 

on  the day  of ,  in  the  year  of  our  Lord  eighteen 

hundred  and ,  intestate,  possessed  of  goods  and  estate 

remaining  to  be  administered,  leaving  a  widow  whose  name 
is  E.  D.,  and  as  his  only  next  of  kin  the  persons  whose 
names,  residence,  and  relationship  to  the  deceased  are  as 
follows,  viz. 

S.  A.,  wife  of  P.  A.,  of  L.,  in  said  county,  a  daughter  of 
said  deceased. 

J.  D.  and  L.  D.,  of  said  C,  sons  of  said  deceased. 

That  your  petitioner  is  entitled,  as  next  of  kin  of  said  de- 
ceased, to  take  such  administration. 

Wherefore  he  prays  that  he  may  be  appointed  adminis- 
trator of  the  estate  of  said  deceased. 

Dated  this day  of ,  A.  D.  18—. 

L.  D. 

The  undersigned,  being  all  the  parties  interested  in  the 
foregoing  petition,  desii-e  the  same  may  be  granted  without 
further  notice. 

E.  D.   (Widow.) 
J.  D. 
S.  A. 


APPENDIX.  315 

[No.  17.] 

Petition  by  One  requested  by  the  Parties  interested  to 
administer. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and 
for  the  county  of  H. 

Respectfully  represents  A.  B.,  of  L.,  in  the  county  of  W., 
that  C.  D.,  who  last  dwelt  in  H.,  in  said  county  of  11.,  died 

on  the day  of ,  in  the  year  of  our  Lord  eighteen 

hundred  and ,  intestate,  possessed  of  goods  and  estate 

remaining  to  be  administered,  leaving  no  w^idow,  and  as  his 
only  next  of  kin  the  persons  whose  names,  residence,  and 
relationship  to  the  deceased  are  as  follows,  viz. 

J.  D.,  of  said  H.,  a  son  of  said  deceased. 

S.  D.,  of  said  H.,  a  daughter  of  said  deceased. 

That  there  are  no  creditors  of  the  said  C.  D.  known  to 
your  petitioner,  and  that  he  is  requested  by  the  next  of  kin 
of  said  deceased  to  take  such  administi-ation. 

Wherefore  your  petitioner  prays  that  he  maybe  appointed 
administrator  of  the  estate  of  said  deceased. 

Dated  this day  of ,  A.  D.  18 — . 

A.  B. 

The  undersigned,  being  all  the  parties  interested  in  the 
foregoing  petition,  desire  the  same  may  be  granted  without 
further  notice. 

J.  D. 

S.  D. 


[No.  18.] 
Petition  for  Administration  by  a  Creditor. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and 
for  the  county  of  M. 

Respectfully  represents  A.  B.,  of  C,  in  the  county  of , 

that  C.  D.,  who  last  dwelt  in  L.,  in  said  county  of  M.,  died 

on  the day  of ,  in  the  year  of  our  Lord  eighteen 

hundred  and ,  intestate,  possessed  of  goods  and  estate 


316  APPENDIX. 

remaining  to  be  administered,  leaving  a  widow  whose  name 
is  H.  D.,  and  as  his  only  next  of  kin  the  persons,  whose 
names,  residence,  and  relationship  to  the  deceased  are  as 
follows,  viz. 

B.  D.,  of  said  L.,  and  J,  D.,  of  Albany,  in  the  State  of 
New  York,  both  of  whom  are  sons  of  said  deceased. 

That  the  widow  and  next  of  kin  of  said  C.  D.  have  neg- 
lected for  thirty  days  since  his  death,  and  still  neglect,  to 
take  administration  of  his  estate ;  and  that  your  petitioner 
is  one  of  the  principal  creditors  of  said  deceased. 

Wherefore  your  petitioner  prays  that  he  may  be  appointed 
administrator  of  the  estate  of  said  deceased. 

Dated  this day  of ,  A.  D.  18  — . 

A.  B. 


[No.  19.] 
Petition  for  Administration  by  Husband. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and 
for  the  county  of  B. 

Respectfully  represents  A.  C,  of  D.,  in  said  county  of  B., 

that  L.  C,  who  last  dwelt  in  said  D.,  died  on  the day 

of ,  A.  D.  18 — ,  intestate,  possessed  of  goods  and  estate 

remaining  to  be  administered,  leaving  as  her  only  next  of 
kin  the  persons  whose  names,  residence,  and  relationship  to 
the  deceased  are  as  follows,  viz. 

S.  A.  and  B.  A.,  both  of  11.,  in  the  county  of  N.,  brothers 
of  said  deceased. 

That  your  petitioner  was  the  husband  of  said  deceased  at 
the  time  of  her  death,  and  is  entitled  to  administer  her 
estate. 

Wherefore  your  petitioner  prays  that  he  may  be  appointed 
administrator  of  the  estate  of  said  deceased. 

Dated  this day  of ,  A.  D.  18—. 

A.  B. 


APPENDIX.  317 

[No.  20.] 

Petition  for  Administration  when  Intestate  was  an  Inhabi- 
tant of  another  State. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and 
for  the  county  of  M. 

Respectfully  represents  A.  D.,  of  L.,  in  the  county  of  M., 
that  C.  D.,  who  last  dwelt  in  Albany,  in  the  State  of  New 

York,  died  on  the day  of  ,  A.  D.  18 — ,  intestate, 

possessed  of  goods  and  estate  in  said  county  of  M.,  remain- 
ing to  be  administered,  leaving  a  widow  whose  name  is  S.  D., 
and  as  his  only  next  of  kin  the  persons  wliose  names,  resi- 
dence, and  relationship  to  the  deceased  are  as  follows,  viz. 

J.  D.  and  H.  D.,  both  of  said  Albany,  and  A.  D.,  of  said 
L.,  all  of  them  children  of  said  C.  D. 

That  your  petitioner  is  entitled,  as  next  of  kin  of  said 
C.  D.,  to  administer  his  estate. 

Wherefore  your  petitioner  prays  that  he  may  be  appointed 
administrator  of  the  estate  of  said  deceased. 

Dated  this day  of ,  A.  D.  18—. 

A.  D. 


[No.  21.] 
Petition  for  Administration   by  a  Public  Administrator. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and 
for  the  county  of  S. 

Respectfully  repi-esents  A.  B.,  of  B.,  in  said  county  of  S., 

that  C.  D.,  who  last  dwelt  in  said  B.,  died  on  the day 

of  7 ,  in  the  year  of  our  Lord  eighteen  hundred  and , 

intestate,  possessed  of  goods  and  estate  in  said  County  of  S. 
remaining  to  be  administered,  and  not  leaving  a  widow  nor 
any  next  of  kin  in  this  Commonwealth. 

That  your  petitioner  is  a  public  administrator  in  and  for 
said  county  of  S.,  and  is  entitled  to  administer  the  estate  of 
said  deceased. 

Wherefore  your  petitioner  prays  that  administration  of 
the  estate  of  said  deceased  may  be  granted  to  hiin. 

Dated  this day  of ,  A.  D.  18—. 

A.  B. 


318  APPENDIX. 

[No.  22.] 
Petition  for  Administration  with  the  Will  annexed. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and 
for  the  county  of  H. 

Respectfully  represents  H.  D.,  of  S.,  in  said  county  of  H., 

that  C.  D.,  who  last  dwelt  in  said  S.,  died  on  the day 

of  • ,  in  the  year  of  our  Lord  eighteen  hundred  and , 

testate,  possessed  of  goods  and  estate  remaining  to  be  ad- 
ministered, leaving  as  his  only  next  of  kin  the  persons  whose 
names,  residence,  and  relationship  to  the  deceased  are  as 
foUoAvs,  viz. 

L.  D.  and  S.  D.,both  of  said  S.,  children  of  said  deceased, 
both  of  whom  ai-e  minors  under  the  age  of  twenty-one  years. 

That  the  last  will  and  testament  of  said  deceased  was 
duly  approved  and   allowed  at  a  probate  court  holden  at 

W.,  in  said  county,  on  the  day  of last  past,  and 

that  no  person  is  named  in  said  will  as  the  executor  thereof ; 
{or,  that  the  sole  executor  named  in  said  will  has  refused 
to  accept  said  trust ;  or,  having  been  duly  cited  to  appear 
and  accept  said  trust,  has  neglected  so  to  do  ;  or,  has  neg- 
lected for  more  than  twenty  days  since  said  will  was 
proved  as  aforesaid,  and  still  neglects,  to  give  bond  for  the 
faithful  discharge  of  his  trust ;  or,  has  deceased ;  or,  is  a 
minor  under  the  age  of  twenty-one  years). 

That  your  petitioner  is  widow  of  said  C.  D.,  and  is  en- 
titled to  administer  his  estate. 

Wherefore  your  petitioner  prays  that  she  may  be  ap- 
pointed administratrix  with  the  will  annexed  of  the  estate 
of  said  deceased. 

Dated  this day  of ,  A.  D.  18—. 

H.  D. 


[No.  2.3.] 

Petition  for  Administration  de  bonis  non. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and 
for  the  county  of  F. 

Respectfully  represents  A.  B.,  of  N.,  in  the  county  of  H., 


APPENDIX.  319 

that  C.  D.,  who  last  dwelt  in   G.,  in  said  county  of  F.,  died 

on  the day  of ,  in  the  year  of  our  Lord  eighteen 

hundred  and ,  intestate,  possessed  of  goods  and  estate 

remaining  to  be  administered  ;  that  at  a  probate  court  holden 

at  C,  in  said  county  of  F.,  on   the day  of ,  A.  D. 

18 — ,  E.  F.,  of  said  G.,  was  duly  ajjpointed  administrator  of 
the  estate  of  said  deceased ;  that  said  E.  F.  accepted  said 
trust,  but  has  recently  deceased  {or,  that  by  a  decree  of  a 

probate  court  holden   at ,  in  said  county  of  F.,  on  the 

day  of ,  A.  D.  18 — ,  said  E.  F.  wns  removed  from 

his  said  office  of  administrator ;  or,  was  allowed  to  resign 
his  said  ofHce,  &c.),  and  that  there  is  personal  estate  of  said 
deceased  remaining  to  be  administered  to  the  amount  of 
twenty  dollars  {or,  that  there  are  debts  to  the  amount  of 
twenty  dollars  remaining  due  from  the  estate  of  said  de- 
ceased). 

That  your  petitioner  is  heir  at  law  (or,  is  a  creditor,  &c.) 
of  said  C.  D.,  and  is  interested  in  said  estate. 

Wherefore  your  petitioner  prays  that  he  may  be  appointed 
administrator  of  the  estate  of  said  deceased  not  already  ad- 
ministered. 

Dated  this day  of ,  A.  D.  18 — . 

A.  B. 


[No.  24.] 

J^etition  for  Administration  de  bonis  non  with  the 

Will  annexed. 

To  the  Honorable  the  Judge  of  the  Probate  Coui-t  in  and 
for  the  county  of  F. 

Respectfully  represents  H.  D.,  of  L.,  in  the  county  of  E., 
that  the  will  of  C.  D.,  late  of  S.,  in  said  county  of  P.,  was 

duly  proved  and  allowed  in  said  court  on  the day  of 

,  A.  D.  18 — ,  and  L.  D.,  of  said  S.,  appointed  executor 

thereof ;  that  said  executor  entered  upon  the  discharge  of 

his  trust,  but  has  lately,  to  wit,  on  the day  of , 

A.  D.,  died  {or  state  other  cause  of  the  vacancy  accordmg  to 
the  facts),  without  having  fully  executed  said  will,  there 


320  APPENDIX. 

being  (here  state  wherein  the  will  has  not  been  fully  executed)  ; 
{or,  there  being  debts  to  tlie  amount  of  twenty  dollars  re- 
maining due  from  the  estate  of  said  C.  D.)  ;  (or,  there  being 
personal  estate  of  said  C.  D.  not  administered  to  the  amount 
of  twenty  dollars). 

That  your  petitioner  is  one  of  the  legatees  named  in  said 
will  {or,  is  a  creditor,  &c.,  &c.),  and  is  interested  in  the 
estate  of  said  C.  D. 

"Wherefore  your  petitioner  prays  that  he  may  be  appointed 
administrator  with  the  will  annexed  of  the  estate  of  said 
deceased  not  already  administered. 

•    Dated,  &c. 

H.  D. 

Assent  of  Persons  interested  to  he  annexed  to  the  foregoing 
Petition. 

The  undersigned,  being  all  the  legatees  and  parties  inter- 
ested in  the  foregoing  petition,  request  that  the  prayer 
thereof  be  granted,  without  further  notice. 

J.  D. 

S.  D. 

H.  D. 

[No.  25.] 
Petition  for  Special  Administration. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and 
for  the  county  of  H. 

Respectfully  represents  A.  D,,  of  S.,  in  the  county  of  H., 
that  C.  D.,  who  last  dwelt  in  C,  in  said  county  of  11.,  died 
on  the day  of  ,  in  the  year  of  our  Lord  one  thou- 
sand eight  hundred  and ,  possessed  of  goods  and  estate 

remaining  to  be  administered,  and  that  there  is  delay  in 
granting  letters  testamentary  {or,  of  administration)  on  his 
estate  by  reason  of  a  suit  concerning  the  proof  of  the  last 
will  and  testament  of  said  C.  D.  {or  state  any  other  reason 
for  the  appointment  in  accordance  with  the  facts). 

That  your  petitioner  {Jiere  state  the  relation  of  the  peti- 
tioner to  the  estate,  xohether  as  heir,  creditor,  &c.). 


APPENDIX.  321 

Wherefore  your  petitioner  prays  that  he  maybe  appointed 
special  administrator  of  the  estate  of  said  deceased ;  and 
may  be  authorized  to  take  charge  of  all  the  real  estate  of 
said  deceased,  and  to  collect  the  rents  and  make  necessary 
repairs.  Dated  this,  &c. 

A.  D. 

Assent  of  Persons  interested  to  be  annexed  to  the  foregoing 
Petition. 

The  undersigned,  being  all  the  parties  interested  in  the 
foregoing  petition,  request  that  the  same  may  be  granted, 
without  further  notice. 

J.  D. 

S.  D. 

H.  D. 

[No.  26.] 
Petition  by  Widow  to  be  appointed  Guardian  of  her  Children. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and 
for  the  county  of  H. 

Respectfully  represents  A.  B.,  of  ,  in  the  county  of 

,  that  there  is  occasion  for  the  appointment  of  a  guar- 
dian of  J.  B.,  who  was  born  on  the day  of  ,  A.  D. 

18—,  and  S.  B.,  born  on  the  day  of  ,  A.  D.  18 — , 

both  of  W.,  in  the  county  of  H.,  minors,  and  children  of 
C.  B.,  late  of  said  W.,  deceased,  and  your  jietitioner,  and 
she  prays  that  she  may  be  appointed  to  that  trust. 

Dated  this day  of ,  A.  D.  18—. 

A.  B. 

[No.  27.] 
Petition  of  a  Person  not  a  Relative  of  the  Minor  to  be  ap- 
pointed his  Guardian,  the  si€7'viving  Parent  assenting. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and 
for  the  county  of . 

Respectfully  re^n-esents  H,  J.,  of  ,  in  the  county  of 

,  that  there  is  occasion  for  the  appointment  of  a  guar- 

21 


322  APPENDIX. 

dian  of  N.  D.,  who  was  born  on  the day  of ,  A.  D. 

18 — ,  now  of ,  in  the  county  of ,  a  minor,  and  child 

of  C.  D.,  late  of  ,  in  the  county  of  ,  deceased,  and 

E.  D.,  his  widow  ;  that  your  y)etitioncr  is  requested  by  said 
E.  D.  to  take  such  guardianship,  and  prays  that  he  may  be 
appointed  to  that  trust. 

Dated  this day  of ,  A.  D.  18 — . 

II.  J. 

I,  the  surviving  parent  of  said  minor,  hereby  assent  to  the 
granting  of  the  foregoing  petition.  E.  D. 


[No.  28.] 

Petition  of  a  Person  not  a  Relative  of  the  Minor  to  he  ap- 
pointed his  Guardian^  the  next  of  Kin^  c&c,  assenting. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and 

for  the  county  of , 

Respectfully  represents  H.  J.,  of  ,  in  the  connty  of 

-,  that  there  is  occasion  for  the  appointment  of  a  guar- 


dian of  N.  D.,  who  was  born  on  the day  of ,  A.  D. 

18 — ,  now  of ,  in  the  county  of ,  a  minor,  and  child 

of  C.  D.,  late  of ,  in  the  county  of  ,  deceased,  and 

E.  D.,  who  is  also  deceased.     That  the  only  next  of  kin  of 
said  minor  known  to  your  petitioner  are  J.  D.  and  R.  D., 

brothers  of  said  minor,  both  of  ,  &c.  (or,  that  there  are 

no  next  of  kin  of  said  minor  known  to  your  petitioner,  and 

that  said  minor  has  lately  been  in  the  care  of  P.  R.,  of , 

&c.). 

That  your  petitioner  has  been  requested  by  said  J.  D.  and 
R.  D.  to  take  such  guardianship,  and  prays  that  he  may  be 
appointed  to  that  trust. 

Dated  this day  of ,  A.  D.  18—. 

H.  J. 

We,  the  next  of  kin  of  said  minor  (or,  having  the  care  of 
said  minor),  hereby  assent  to  the  granting  of  the  foregoing 
petition. 

J.  D. 

R.  D. 


APPENDIX.  323 


[No.  29.] 

Petition  of  Person  nominated  hy  a  Minor  over  the  age  of 

fourteen. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and 

for  the  county  of . 

Respectfully  represents  H.  J.,  of  ,  in  the  county  of 

that  there  is  occasion  for  the  appointment  of  a  guar- 


dian of  N".  D.,  who  was  born  on  the day  of ,  A,  D. 

18 — ,  now  of ,  in  the  county  of ,  a  minor,  and  child 

of  C.  D.,  late  of ,  in  the  county  of  -,  deceased,  and 

E.  D.,  his  widow.  That  said  minor  has  nominated  your 
petitioner  to  be  his  guardian,  and  your  petitioner  prays  that 
he  may  be  appointed  to  that  trust. 

Dated  this day  of ,  A.  D.  18 — . 

H.  J. 

,  ss. ,  A.  D.  18—. 

Personally  appeared  the  above-named  N.  D.,  a  minor, 
above  the  age  of  fourteen  years,  and  nominated  said  H.  J. 
to  be  his  guardian. 

Before  me, 

J.  S.,  Justice  of  the  Peace. 


[No.  30.] 

Petition  for  Guardianship  of  3Enor,  over  fourteen^  who 

neglects  to  nominate. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and 
for  the  county  of  B. 

Respectfully  represents  A.  D.,  of  ,  &c.,  that  there  is 

occasion  for  the  appointment  of  a  guardian  of  J.  D.,  who 

was  born  on  the day  of ,  A.  D.  18 — ,  now  of , 

in  the  county  of  B.,  a  minor,  and  child  of  C.  D.,  late  of , 

in  the  county  of  B.,  deceased,  and  E.  D.,  who  is  also  de- 
ceased ;  that  said  minor  is  above  the  age  of  fourteen  years, 
but  has  neglected  and  still  neglects  to  nominate  any  person 
to  be  his  guardian  ;  that  your  petitioner  is  a  brother  of  said 


324  APPENDIX. 

minor  and  his  only  next  of  kin,  and  your  petitioner  prays 
that  he  may  be  appointed  to  that  trust. 

Dated  this day  of ,  A.  D.  18 — . 

A.  D. 


[No   31.] 

Petition  for  Guardianship  of  a  Minor  residing  out  of  the 

State. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and 
for  the  county  of  M. 

Respectfully  represents  A.  B.,  of,  &c.,  that  there  is  occa- 
sion for  the  appointment  of  a  guardian  of  J.  D.,  who  was 

born  on  the day  of ,  A.  D.  18 — ,  now  of  New  York, 

in  the  State  of  New  York,  minor,  and  child  of  C.  D,,  late  of 
said  New  York,  deceased,  and  E.  D.,  his  widow ;  that  said 
minor  has  certain  estate  situate  in  said  county  of  M.,  and 
that  your  petitioner  is  {here  state  the  relations  of  the  peti- 
tioner to  the  miliar,  or  to  his  estate,  in  accordance  vnth  the 
facts  of  the  case) ;  and  your  petitioner  prays  that  he  may 
be  appointed  to  that  trust. 

Dated  this  day  of ,  A.  D.  18—. 

A.  B. 


[No.  32.] 
Petition  for  Apj^ointment  of  Trustee  to  fill  Vacancy. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and 
for  the  county  of  B. 

Respectfully  represents  A.  B.,  of ,  in  the  county  of 

,  that  C.  D.,  late  of ,  in  said  county  of  B,,  deceased, 

testate,  by  his  last  will  and  testament,  duly  proved  and  al- 
lowed on  the  day  of  ,  in  said  court,  did  therein 

give  certain  estate  in  trust  for  the  use  and  benefit  of  E.  F., 

of ,  &c.  {here  state  any  material  facts  in  regard  to  the 

objects  of  the  trust),  and  appointed  G.  H.,  of,  &c.,  trustee 
under  said  will ;  that  said  G.  H.  declines  to  accept  said  trust 
{or  state  the  fact  of  the  removal  or  death  of  the  former  trus- 


APPENDIX.  325 

tee^  as  the  case  may  be).  He  therefore  prays  that  he  may  be 
appointed  (or,  that  K.  L.,  of,  &c.,  may  be  appointed)  trustee, 
in  the  place  of  said  G.  H.,  according  to  the  provisions  of  the 
law  in  such  case  made  and  provided. 

Dated  this day  of ,  A.  D.  18 — . 

A.  B. 

Assent  of  Persons  interested  to  he  annexed  to  the  foregoing 

Petition. 

The  undersigned,  being  the  only  parties  interested  in  the 
foregoing  petition,  desire  the  same  may  be  granted,  without 
further  notice. 

J.  D. 

S.  D. 

H.  D. 


[No.  33.] 

Petition  for  appointment  of  Trustee,  under  Statute  "  con- 
cerning Provisions  for  Widows  in  certain  Cases.^^  (/Stat. 
1861,  c.  164.) 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and 
for  the  county  of . 

Respectfully  represents  A.  B.,  of,  &c.,  that  in  the  will  of 

C.  D.,  late  of  S.,  in  said  county  of ,  deceased,  which  has 

been  duly  proved  and  allowed  in  said  court,  certain  provision 
was  made  for  H.  D.,  widow  of  said  C.  D. ;  that  said  H.  D. 
has  filed  in  the  probate  office,  in  writing,  her  waiver  of  the 
provision  made  for  her  in  said  will,  and  has  thereby  become 
entitled  to  receive  the  sum  of  ten  thousand  dollars  of  the 
personal  estate  of  said  C.  D.  in  her  own  right,  and  the  in- 
come during  her  natural  life  of  the  further  sum  of dol- 
lars, as  fully  appears  by  the  final  account  of  L.  M.,  executor 
of  the  will  of  said  C.  D.,  allowed  and  recorded  in  the  probate 
oflSice ;  that  there  is  occasion  for  the  appointment  of  a  trustee 
to  receive,  hold,  and  manage  said  sum  of dollars  dur- 
ing the  life  of  said  H.  D.,  and  that  your  petitioner  is  named 
a  legatee  in  the  will  of  said  C.  D.,  and  is  interested  in  said 
estate. 


326  APPENDIX. 

Wherefore  your  petitioner  prays  that  he  may  be  appointed 
trustee  as  aforesaid,  according  to  the  provisions  of  the  law 
in  such  case  made  and  provided. 

Dated  this day  of ,  A.  D. . 

A.  B. 

Assent  of  Persons  interested  to  be  annexed  to  the  foregoing 
Petition. 

The  undersigned,  being  all  the  legatees,  and  the  only  par- 
ties interested  in  the  foregoing  petition,  desire  the  same  may 
be  granted,  without  further  notice. 

T.  D. 

S.  D. 

H.  B. 


[No.  34.] 
Decree  on  the  foregoing  Petition. 

At  a  probate  court  holden,  &c. 

On  the  petition  of  A.  B.,  of,  «fec.,  praying  to  be  appointed 
trustee  to  receive,  hold,  and  manage  a  certain  portion  of  the 

personal  estate  of  C.  D.,  late  of  S.,  in  said  county  of , 

deceased,  during  the  natural  life  of  H.  D.,  widow  of  said  C. 
D.,  being  that  portion  of  said  personal  estate  to  the  income 
of  which  said  H.  D.  is  entitled  by  reason  of  her  waiver  of 
the  provision  made  for  her  in  the  will  of  said  C.  D. 

It  appearing  by  the  waiver  of  said  H.  D.,  on  file  in  the 
probate  office,  and  by  the  final  account  of  L.  M.,  executor  of 
the  will  of  said  C.  D.,  which  has  been  duly  allowed  and  re- 
corded, that  said  H.  D.  is  entitled  to  the  sum  of  ten  thousand 
dollars  of  the  personal  estate  of  said  deceased  in  her  own 

right,  and  to  the  income  of  the  further  sum  of dollars 

during  her  natural  life,  and  that  notice  of  the  pendency  of 
said  petition  has  been  given  to  parties  interested  therein  as 
ordered,  and  no  party  objecting  thereto ;  it  is  decreed  that 
said  petitioner  be  appointed  trustee,  to  receive,  hold,  and 

manage  said  sum  of  dollars,  and  to  pay  the  income 

thereof  to  said  H.  D.  during  her  natural  life,  and  at  the 


APPENDIX.  327 

death  of  said  H.  D,  to  pay  said  sum  to  the  persons  entitled 
by  law  and  the  will  of  said  deceased  to  receive  the  same. 

J.  S.,  Judge  of  Probate  Court. 


[No.  35.] 
Petitioyi  for  the  Removal  of  an  Administrator. 

To  the  Honorable  the  Judge  of  the  Probate  Court  for  the 
county  of . 

Respectfully  represents  A.  B.,  of  S.,  in  said  county,  that  he 
is  heir  at  law  of  C.  D.,  late  of  said  S.,  deceased,  and  is  inter- 
ested in  the  estate  of  said  C.  D. ;  that  at  a  probate  court 

holden  at  E.,  in  said  county,  on  the day  of ,  A.  D. 

,  one  F.  G.  Avas  duly  appointed  administrator  of  said 

estate,  and  accepted  said  trust ;  that  the  said  F.  G.  {Jiere 
state  the  grounds  upon  which  the  removal  is  asked,  'whether 
it  he  personal  lai/itness^  or  neglect  of  duty,  or  other  mat- 
administration),  and  is  not  now  suitable  for  the  discharge 
of  said  trust. 

Wherefore  he  prays  that  the  said  F.  G.  may  be  removed 
from  his  said  oflSce  of  administrator. 

Dated  this  day  of ,  A.  D.  18—. 

A.  B. 

(Petitions  for  the  removal  of  unsuitable  or  unfaithful  exe- 
cutors, guardians,  and  trustees  may  be  made  substantially  in 
the  same  form.) 


[No.  36.] 
Decree  on  the  foregoing  Petition. 

At  a  probate  court  holden  at,  &c. 
On  the  petition  of  A.  B.,  of,  &c.,  representing  that  he  is 
heir  at  law  of  C.  D.,  late  of  S.,  in  said  county  of ,  de- 
ceased, and  is  interested  in  liis  estate,  and  i)raying  that  F. 
G.,  administrator  of  the  estate  of  said  C.  D.,  may  be  removed 
from  his  said  trust  for  the  reason  that,  &c. 


328  APPENDIX. 

It  appearing  that  notice  thereof  has  been  given  to  said 
F.  G.,  and  that  the  allegations  set  forth  in  said  petition  are 
true,  and  that  said  F.  G.  is  therefore  evidently  unsuitable  for 
the  faithful  discharge  of  said  trust. 

It  is  decreed  that  said  F.  G.  be,  and  he  is  this  day,  re- 
moved from  his  said  office  of  administrator  of  the  estate  of 
said  C.  D. 

J.  S.,  Judge  of  the  Probate  Court. 


[No.  37.] 
designation  of  Administrator. 

To  the  Honorable  the  Judge  of  the  Probate  Court  for  the 
county  of . 

Respectfully  represents  A.  B.,  of  W.,  in  said  county,  that 

at  a  i^robate  court  holden  at  said  W.,  on  the day  of 

,  A.  D.  18 — ,  he  was  duly  appointed  administrator  of  the 

estate  of  C.  D.,  late  of  S.,  in  said  county,  deceased,  intes- 
tate, and  gave  bond  for  the  discharge  of  said  trust  as  re- 
quired by  law  ;  that  said  estate  is  not  fully  administered, 
but  that  he  is  unable,  by  reason  of  ill  health  {or  othe/)-  cause), 
to  give  such  personal  attention  to  the  duties  of  said  trust  as 
the  interests  of  said  estate  require. 

"Wherefore,  he  herewith  files  a  just  and  true  account  of  his 
administration  of  said  estate,  and  prays  that  he  may  be  al- 
lowed to  resign  his  said  trust. 

Dated  this day  of ,  A.  D.  18—. 

A.  B. 


[No.  38.] 

Decree  on  the  foregoing. 

At  a  probate  court  holden,  &c. 
On  the  petition  of  A.  B.,  of,  &c.,  administrator   of  the 

estate  of  C.  D.,  late  of  S.,  in  said  county  of ,  deceased, 

praying  that  he  may  be  allowed  to  resign  his  said  office  of 
administrator  for  the  reason  that,  &c. 


APPENDIX.  329 

It  appearing  that  notice  thereof  has  been  given  to  all 
parties  interested,  as  ordered,  and  that  it  is  proper  that  the 
prayer  of  said  petition  be  granted,  it  is  decreed  that  said 
A.  B.  be  allowed  to  resign  his  said  trust,  and  he  is  thereby- 
discharged  therefrom. 

J.  S.,  Judge  of  Probate   Cowrt. 


[No.  39.] 

Petition  of  Ward  to  be  discharged  from  Guardianship. 

To  the  Honorable  the  Judge  of  the  Probate  Court  for 

the  county  of . 

Respectfully  represents  A.  B.,  of  ,  in  said  county  of 

-,  that  by  a  decree  of  the  probate  court  holden  at 


in  and  for  said  county,  on  the day  of ,  A.  D.  18 — , 

he  was  adjudged  to  be  an  insane  person  {or^  a  spendthrift), 

and  C.  D.,  of ,  in  said  county,  was  duly  appointed  his 

guardian,  and  accepted  the  trust ;  that  said  appointment 
has  never  been  revoked,  and  that  said  C.  D.  still  continues 
to  have  custody  of  the  person  of  your  petitioner  and  the 
management  of  his  estate. 

Your  petitioner  further  represents  that  he  believes  that  he 
is  now  capable  of  managing  his  own  estate,  and  that  the 
necessity  for  such  guardianship  no  longer  exists. 

Wherefore  he  prays  that  he  may  be  discharged  from  said 
guardianship. 

Dated  this day  of ,  A.  D.  18 — . 

A.  B. 


[No.  40.] 
Decree  on  the  foregoing  Petition. 

On  the  petition  of  A.  B.,  of,  &c.,  a  person  adjudged  insane, 
(or,  a  6j)C'ndthrift,)  and  under  guardianship,  representing 
that  such  guardianship  is  no  longer  necessary,  and  praying 
that  C.  D.,  his  guardian,  may  be  discharged  from  his  said 
trust. 

It  appearing  that  notice  thereof  has  been  given  to  all  per- 


330  APPENDIX. 

sons  interested  therein,  and  that  said  A.  B.  has  become  re- 
stored to  his  right  mind  (or,  has  become  correct  in  his 
habits),  and  is  competent  to  manage  liis  estate,  and  that 
such  guardianship  is  no  longer  necessary ;  it  is  decreed  that 
the  prayer  of  said  petition  be  granted,  and  said  C.  D.  be 
and  he  is  hereby  discharged  from  his  said  trust  of  guardian 
of  said  A.  B. 

•  J.  S.,  Judge  of  Probate  Court. 


[No.  41.] 

Justices  Order  to  Appraisers. 

ss. 

To  A.  B.,  F.  G.,  and  N".  O.,  all  of  S.,  in  said  county. 

You  are  hereby  appointed  to  appraise,  on  oath,  the  estate 
and  effects  of  C.  D.,  late  of  said  S,,  deceased  {or,  of  B.  A. 
and  G.  F.,  of  said  S.,  minors),  which  maybe  in  said  county. 
When  you  have  performed  that  service,  you  will  deliver 
this  order  and  your  doings  in  pursuance  thereof  to  J.  S., 
administrator  of  the  estate  of  said  deceased  (or,  executor 
of  the  last  will  and  testament  of  said  deceased,  or,  guar- 
dian of  said  minors,  as  the  case  may  be),  that  he  may  return 

the  same  to  the  probate  court  for  the  county  of . 

Given  under  my  hand  this day  of ,  A.  D.  18 — . 

L.  N.,  Justice  of  the  Peace. 

ss.     A.  D.  18 — .    Then  the  above-named  A.  B,,  F.  G., 

and  N.  O.,  personally  appeared  and  made  oath  that  they 
would  faithfully  and  impartially  discharge  the  trust  reposed 
in  them  by  the  above  order.     Before  me, 

L.  N.,  Justice  of  the  Peace. 


[No.  42.J 
Complaint  for  Embezzlement. 
To  the  Honorable  the  Judge  of  the  Probate  Court  for 
the  county  of . 


APPENDIX.  331 

A.  B.,  of  L.,  in  said  county,  on  oath  complains  that  he 
has  good  cause  to  suspect,  and  does  suspect,  that  T.  T.,  of 
said  L.j  has  fraudulently  received,  concealed,  embezzled,  and 
conveyed  away  certain  ai-ticles  of  personal  property  belong- 
ing to  the  estate  of  C.  D.,  late  of  said  L.,  deceased  (or,  of  G.  F. 
and  H.  F.,  both  of  P.,  in  said  county,  minors),  to  wit  {here 
describe  the  articles)  :  that  your  complainant  is  administrator 
of  the  estate  of  said  C.  P.  (or,  is  legatee,  creditor,  heir  at 
law,  &G. ;  or,  guardian  of  said  minors,  as  the  case  may  be), 
and  is  interested  in  said  estate. 

Wherefore  he  prays  that  said  T.  T.  may  be  cited  to  ap- 
pear before  said  court,  to  be  examined  upon  oath  upon  the 
matter  of  this  complaint,  and  that  such  further  proceed- 
ings may  be  had  in  the  premises  as  the  law  requires. 

A.  B. 

ss.     Subscribed  and  sworn  to  this day  of , 

A.  D.  18 — ,  before  me, 

L.  N.,  Justice  of  the  Peace, 


[No.  43.] 

Warrant  to  commit  a  Person  complained  of  for  Embezzle- 
ment. 

Commonwealth  of  Massachusetts. 

ss.  To  the  Sheriff  of  the  county  of ,  his  dep- 
uties, &c.,  and  to  the  keeper  of  the  jail  in  said  county. 

Greeting. 

Whereas,  complaint  was  made  to  the  probate  court  hol- 
den,  &c.,  by  A.  B.,  of  L.,  in  said  county,  administrator  of 
the  estate  of  C.  D.,  late  of  said  L.,  deceased,  that  he  has 
good  cause  to  suspect,  and  does  suspect,  that  T.  T.,  of  said 
L.,  has  fraudulently  received,  concealed,  embezzled,  and  con- 
veyed away  certain  articles  of  personal  projterty  therein 
described,  whereupon  said  T.  T.  Avas  duly  cited  to  appear 
and  be  examined  on  oath,  upon  the  matter  of  said  com- 
plaint ;  and  whereas,  said  T.  T.  refuses  so  to  appear  and 
submit  to  examination  (or,  to  answer  interrogatories   law- 


332  APPENDIX. 

fully  propounded  to  him),  touching  the  matter  of  said  com- 
plaint, and  is  thereupon  ordered  to  be  committed  to  the  jail 
in  said  county,  there  to  remain  in  close  custody  until  he 
submits  to  the  order  of  the  court. 

You  and  each  of  you  are  therefore  required,  in  the  name 
of  the  Commonwealth  of  Massachusetts,  to  take  the  body 
of  the  said  T.  T.  and  convey  him  to  the  jail  in  said  county, 
and  deliver  him  to  the  keeper  thereof,  and  make  return  of 
this  precept  with  your  doings  thereon. 

And  you,  the  said  keeper,  in  the  name  of  the  Common- 
wealth aforesaid,  are  hereby  required  to  receive  said  T.  T. 
into  your  custody  in  said  jail,  and  him  there  safely  keep, 
until  he  shall  consent  to  be  examined  and  answer  inter- 
rogatories upon  oath  as  aforesaid,  or  until  he  be  otherwise 
discharged  in  due  course  of  law. 

Given  under  my  hand  and  the  seal  of  said  court  this 

day  of ,  A.  D.  18—. 

J.  S.,  Judge  of  Probate  Court. 


[No.  44.] 

Petition  of  Wife  of  a  Person  under   Gh.iardianship  for 

Insanity  for  an  AUowatice. 

To  the  Honorable  the  Judge  of  the  Probate  Court  for 
the  county  of . 

Respectfully  represents   C.  D.,  that  she  is  the  wife  of  A. 

D.,  of  S.,  in  the  county  of ,  an  insane  person ;  that  at 

a  probate  court  holden  at ,  in  said  county,  on  the 

day  of  -: ,  A.  D.  18 — ,  E.  F.,  of  said  S.,  was  duly  appointed 

guardian  of  said  A.  D. ;  that  said  appointment  has  not  been 
revoked  or  determined,  and  that  there  is  certain  estate  of  said 
A.  D.  in  the  hands  of  said  E.  F.,  out  of  which  she  is  entitled 
to  an  allowance  for  her  support,  to  be  paid  to  her  by  said 
E.  F.,  during  the  continuance  of  said  guardianship. 

Wherefore  she  prays  that  an   allowance  may  be  decreed 
to  her  accordingly. 

Dated  the ,  day  of ,  A.  D.  18 — . 

C.  D. 


APPENDIX.  333 

[No.  45.] 
Decree  on  the  foregoing  Petition. 

At  a  probate  court  held,  &c. 

On  the  petition  of  C.  D.,  representing  that  she  is  the  wife 
of  A,  D.,  of  S.,  in  said  county,  an  insane  person  and  under 
guardianship,  and  that  there  is  certain  estate  of  said  A.  D. 
in  the  hands  of  E.  F.,  of  said  S.,  guardian  of  said  A.  D.,  out 
of  which  she  is  entitled  to  an  allowance  for  her  support, 
during  the  continuance  of  said  guardianship. 

It  appearing  that  the  petitioner  is  the  wife  of  said  A.  D., 
and  is  entitled  to  an  allowance  as  aforesaid,  it  is  decreed 

that  the  sum  of  dollars  be  allowed  to  her  annually  for 

her  support,  to  be  paid  to  her  by  said  E.  F.,  in  equal  quar- 
terly payments  {or  otherwise)^  during  the  continuance  of 
said  guardianship,  or  until  otherwise  ordered  by  the  court. 

J.  S.,  Judge  of  Probate  Court, 


[No.  46.] 

Petition  of  Administrator  for  License  to  sell  Debts  due  the 
Estate  of  his  Intestate. 

To  the  honorable  the  Judge  of  the  Probate  Court  in  and 
for  the  county  of . 

Respectfully  represents  A.  B.,  of,  &c.,  administrator  of  the 
estate  of  C.  D.,  late  of  S.,  in  said  county,  deceased,  that  there 
are  certain  claims  due  to  the  estate  of  said  C.  D.,  to  wit 
(Jiere  describe  the  claims  or  assets  to  be  sold) :  which  claims 
cannot  be  collected  by  your  petitioner  without  inconven- 
iently delaying  the  settlement  of  said  estate,  for  the  reason 
that  (here  state  the  particular  reason  for  the  proposed  sale). 

Wherefore  your  petitioner  prays  that  he  may  be  licensed 
to  sell  and  assign  said  claims,  for  the  purpose  of  closing  the 
settlement  of  said  estate  agreeably  to  the  law  in  such  case 
made  and  provided. 

Dated  this day  of ,  A.  D.  18—. 

A.  B. 


334  APPENDIX. 

[No.  47.] 

Decree  on  the  foregoing  Petition. 

,  ss. 

At  a  probate  court  holden,  &c. 

On  the  petition  of  A.B.,  administrator  of  the  estate  of 

C.  D.,  late  of  S.,  in  said  county  of ,  deceased,  rej^resent- 

ing  that  there  are  certain  claims  in  favor  of  said  estate,  to 
wit  {specify  the  claims)  :  which  claims  cannot  be  collected 
without  inconvenient  delay,  and  praying  that  he  may  be 
licensed  to  sell  and  assign  the  same,  for  the  purpose  of  clos- 
ing tlie  settlement  of  said  estate. 

All  parties  interested  having  been  duly  notified,  and  it 
appearing,  after  a  hearing  thereon,  that  the  prayer  of  said 
petition  ought  to  be  granted,  —  it  is  decreed,  that  said  admin- 
istrator be  licensed  to  sell  and  assign  said  claims,  for  the 
purj)Ose  aforesaid  {if  the  sale  is  to  be  public,  add),  by  public 
auction,  first  giving  notice  of  the  time  and  place  thereof 
by,  &c. 

J.  S.,  Judge  of  Probate  Court. 


[No.  48.] 

Petition  for  Leave  to  sell  Personal  Estate  in  the  Hands  of 
a  Guardian  or  Trustee,  and  invest  the  Proceeds  in  Real 
Estate. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and 
for  the  county  of . 

Respectfully  represents  A.  B.,  of,  &c.,  that  he  holds,  in 
his  capacity  of  guardian  of  E.  F.,  of,  &c.  {or,  trustee  under 
the  will  of  C.  D.,  late  of  S.,  in  said  county,  deceased),  twenty 
shares  of  the  capital  stock  of  the  {here  describe  the  prop- 
erty) ;  that  it  would  be  for  the  interest  of  said  E.  F.,  and  of 
all  concerned  therein  (or,  of  all  concerned  in  said  trust 
estate),  that  the  same  be  sold,  and  the  proceeds  thereof  in- 
vested in  certain  real  estate  situate  in,  &c.  {Jiere  describe  the 
land). 

Wherefore  your  petitioner  prays  that  he  may  be  author- 


APPENDIX.  335 

ized  to  sell  the  said  stock  (or  other  property),  and  invest  the 
proceeds  thereof  in  the  purchase  of  the  real  estate  herein 
desci'ibed. 

Dated,  &c. 

A.  B. 

[When  this  petition  is  made  by  some  person  other  than 
the  guardian  or  trustee,  he  should  set  forth  his  relations  to 
the  estate  to  be  sold,  and  pray  that  the  guardian  or  trustee 
may  be  "  required  "  to  sell,  &c.  If  the  guardian  or  trustee 
has  money  to  be  invested,  and  there  is  no  personal  estate  to 
be  sold,  the  petition  must  be  varied  to  meet  the  facts  of  the 
case,  and  the  amount  to  be  invested  should  be  stated.] 


[No.  49.] 
Order  on  the  foregoing  Petition. 

At  a  probate  court  holden,  &c. 

On  the  petition  of  A.  B.,  representing  that  he  holds,  as 
guardian  of  E.  F.,  of,  &c.,  twenty  shares  in  the  capital  stock 

of  the  ,  and  that  it  would  be  for  the  interest  of  said 

E.  F.,  and  of  all  concerned  therein,  that  the  same  be  sold 
and  the  proceeds  thereof  be  invested  in  certain  real  estate 
therein  described. 

It  api^earing  that  notice  thereof  has  been  given  to  all  per- 
sons interested,  as  ordered,  and  that  it  would  be  most  for 
the  interest  of  said  E.  F.,  and  of  all  persons  concerned 
therein,  that  the  prayer  of  said  petition  be  granted  ;  it  is 
decreed,  that  said  A.  B.  be,  and  he  is  hereby,  authorized  to 
sell  said  stock  at  public  auction,  first  giving  notice  of  the 
time  and  place  of  said  sale  by,  &c.  {or,  at  private  sale),  and 
to  invest  the  proceeds  of  said  sale  in  the  purcliase  of  the 
real  estate  described  in  said  petition. 

J.  S.,  Judge  of  Probate  Court. 


336  APPENDIX. 

[No.  50.] 

Petition  of  Administrator  for  Authority  to  compromise  a 

Demayid. 

To  the  Honorable  the  Judge  of  tlie  Probate  Court  in  and 
for  the  county  of  A. 

Respectfully  represents  A.  B.,  administrator  of  the  estate 
of  C.  D.,  late  of  S.,  in  said  county  of  A.,  deceased,  that  he 
has,  as  such  administrator,  a  demand  against  E.  F,,  of,  &c., 
said  demand  being  (describe  the  claim)\  (or,  that  E.  F.,  of, 

&c.,  has  brought  an  action  in  the  court  to  recover  of 

said  estate  the  sum  of  $ ,  for (describe  the  demand), 

that  in  the  judgment  of  your  petitioner  it  will  be  for 

the  benefit  of  all  persons  interested  in  said  estate  that  said 
demand  be  adjusted  by  a  compromise  (or,  by  submitting  the 
same  to  arbitration),  and  that  he  has  reason  to  believe  that 
it  can  be  so  adjusted. 

He  therefore  prays  that  he  may  be  accordingly  authorized 
to  adjust  said  demand  by  compromise  (or,  by  arbitration). 
Dated,  &c. 

A.  B. 

Assent  of  Persons  interested  to  be  annexed  to  the  foregoing 
Petition. 

The  undersigned,  being  the  only  parties  interested  in  the 
foregoing  petition,  desii'e  the  same  may  be  granted,  without 
further  notice. 

J.  D. 

S.  D. 

H.  D. 

The  same  general  form  may  be  used  by  executors,  guar- 
dians, and  trustees. 


[No.  51.J 
Decree  on  the  foregoing  Petition. 

ss.         At  a  probate  court  held,  &c. 


On  the  petition  of  A.  B.,  administrator  of  the  estate  of 


APPENDIX.  337 

C.  D.,  late  of  S.,  in  said  county  of  E.,  deceased,  to  be  author- 
ized to  adjust  by  compromise  a  demand  made  ag-ainst  said 
estate  by  E.  F.,  of,  &c.,  said  demand  being,  &c.,  &c. ;  it  ap- 
pearing that  notice  thereof  has  been  given  as  ordered,  and 
that  the  prayer  of  said  petition  ought  to  be  granted,  it  is 
decreed  that  said  A.  B.  be  authorized  to  adjust  said  demand 
by  a  compromise  upon  such  terms,  to  be  agreed  upon  by  the 
petitioner  and  said  E.  F.,  as  will  be  for  the  benefit  of  all  jDer- 
sons  interested  in  said  estate. 

J.  S.,  Judge  of  Probate  Court. 


[No.  52.] 
Petition  of  Creditor  whose  Might  of  Action  does  not  accrue 
within  the  Time  limited  for  bringing  Suits  against  Ad- 
ministrators. 

To  the  Honorable  the  Judge  of  the  Probate  Court  for  the 
county  of . 

Respectfully  represents  A.  B.,  of  E.,  in  said  county,  that 

at  a  jirobate  court  holden  at  said  E.,  on  the day  of 

,  A.  D.  18 — ,  H.  J.,  of  S.,  in  snid  county,  was  duly  ap- 
pointed executor  of  the  last  will  and  testament  of  C.  D.,  late 
of  said  S.,  deceased,  and  thnt  on  tlie  same  day  the  bond  given 
by  the  said  H.  J.,  for  the  faithful  discharge  of  said  trust,  was 
approved  by  the  judge  of  said  court ;  that  said  executor  has 
given  due  notice  of  his  said  appointment ;  that  your  peti- 
tioner has  a  just  claim  against  the  estate  of  the  said  C.  D.,  a 
full  statement  of  which  is  liereto  annexed,  but  that  no  right 
of  action  on  said  claim  will  accrue  to  your  petitioner  until 
after  the  expiration  of  two  years  from  the  giving  of  said 
bond  by  the  said  H.  J.  Wherefore  your  petitioner  prays 
that  said  executor  may  be  ordered  to  retain  in  his  hands, 
of  the  estate  of  the  said  C.  D.,  a  sum  sufficient  to  satisfy  said 
claim,  or  that  such  other  order  may  be  made  in  the  premises 
as  justice  requires. 

Dated  this day  of ,  A.  D.  18—. 

A.  B. 

(Annex  to  this  petition  a  full  statement  of  the  claim.) 
22 


338  APPENDIX. 

[No.  53.] 
Decree  on  the  foregoinri  Petition. 

At  a  probate  court  holden,  &c. 

On  the  petition  of  A.  B.,  of",  &c.,  representing  that  he  has 
a  claim  against  tlie  estate  of  C.  D.,  hite  of  S.,  in  snid  county, 
deceased,  on  which  claim  no  right  of  action  will  accrue  within 
two  years  after  the  giving  of  the  bond  of  H.  J.,  executor  of 
the  will  of  said  C.  D.,  and  praying  that  said  executor  may 
be  ordered  to  retain  in  his  hands  a  sum  sufficient  to  satisfy 
said  claim  when  the  same  shall  become  payable 

It  appearing  that  notice  thereof  has  been  given  to  all  per- 
sons concerned  therein,  and  that  said  claim  is  justly  due 
from  the  estate  of  sai<l  C.  D.,  and  no  one  interested  in  said 
estate  appearing  to  give  bond  to  said  petitioner  for  the  pay- 
ment of  the  same,  in  case  it  is  proved  to  be  due ;  it  is  de- 
creed, that  said  executor  retain  in  his  hands  a  sum  sufficient 

to  satisfy  said  claim,  to  wit,  the  sum  of  dollars,  until 

the  expiration  of  one  year  from  the  time  when  the  same 
becomes  payable,  or  until  the  rendering  of  final  judgment 
in  any  suit  for  the  recovery  of  the  same  commenced  within 
one  year  after  the  same  becomes  payable,  unless  said  claim 
shall  have  been  sooner  adjusted  and  settled,  saving  to  said 
executor  all  right  of  defence  against  said  claim  which  by  law 
he  may  have. 

J.  S.,  Judge  of  Probate  Court. 


[No.  54.] 

Bond  to  pay  Creditor  rohose  Right  of  Action  does  not  accrue 
within  the  Time  limited  for  bringing  Suits. 

Know  all  men  by  these  Presents,  that  we,  N.  A.,  of 
B.,  in  the  county  of  IM.,  as  principal,  and  S.  A.  and  N.  O., 
both  of  said  B.,  as  sureties,  and  all  within  the  Common- 
wealth of  ^Massachusetts,  are  holden  and  stand  firmly  bound 
and  obliged  unto  A.  11,  of  E.,  in  said  county,  in  the  full  and 

just  sum  of dollars,  to  be  paid  to  the  said  A.  B.,  his 

executors  and  administrators ;  to  the  true  payment  whereof 


APPENDIX.  339 

we  do  bind  ourselves  and  each  of  us,  our  and  each  of  our 
heirs,  executors,  and  administrators,  jointly  and  severally, 

by  these  presents.     Sealed  with  our  seals.     Dated  the 

day  of ,  A.  D.  18—. 

The  Coxditiox  of  this  Obligation  is  such,  that,  whereas 
the  said  A.  B.  has  jjresented  to  the  probate  court  of  said 
county  a  claim  against  the  estate  of  C.  D.,  late  of  S.,  in  said 
county,  deceased,  a  statement  of  which  claim  is  annexed  to 
the  petition  of  said  A.  B.  on  file  in  said  court ;  and  whereas 
the  said  A.  B,  alleges  in  his  said  petition  that  no  right  of 
action  will  accrue  on  said  claim  within  two  years  after  the 
giving  of  the  bond  of  H.  J.,  executor  of  the  last  will  and 
testament  of  said  deceased,  and  prays  that  said  H.  J.  may 
be  ordered  to  retain  in  his  hands,  of  the  estate  of  the  said 
C,  D,,  a  sum  sufficient  to  satisfy  said  claim ;  and  whereas 
the  said  N.  A.  is  interested  in  the  estate  of  said  C.  D.,  and 
is  desirous  that  said  estate  shall  be  distributed  and  settled 
without  delay.  ISTow,  therefore,  if  the  said  N.  A.  shall  pay 
to  the  said  A.  B.  the  full  amount  of  said  claim,  in  case  the 
same  shall  be  ]»roved  to  be  due,  or  such  part  thereof  as  shall 
be  proved  to  be  due,  then  this  obligation  to  be  void,  other- 
wise to  remain  in  full  force  and  virtue. 

In  presence  of  N".  A.  (seal.) 

B.  O.  S.    A.  (seal.) 

S.  T.  -  K  O.  (seal.) 


[No.  55.] 
IBond  of  Legatee  to  indemnify  Executor. 

KXOW  ALL    MEX    BY   THESE    PeESENTS,  that  WC,  D.  D.,  of 

S.,  in  the  county  of ,  as  principal,  and  H.  L.  and  R.  O., 

both  of  said  S.,  as  sureties,  and  all  in  the  Commonwealth  of 
Massachusetts,  are  holden   and  firmly  bound  unto  A.  B.,  of 

H.,  in  the  county  of ,  in  the  full  and  just  sum  of 

dollars,  to  be  paid  to  the  said  A.  B.,  his  executors,  adminis- 
trators, and  assigns,  to  which  i)ayment  well  and  truly  to  be 
made  we  Vjind  ourselves  and  each  of  us,  our  and  each  of  our 
heirs,  executors,  and  administrators,  jointly  and  severally, 


340  APPENDIX. 

firmly  by  these  presents.    Sealed  with  our  seals.    Dated  this 

day  of ,  in  tlie  year  of  our  Lord  one  thousand  eight 

hundred  and . 


The  CoNDiTio>r  of  this  Obligation  is  such,  that,  whereas 
the  said  A.  B.,  in  his  capacity  of  executor  of  the  last  will  and 
testament  of  C.  D.,  late  of  said  H.,  deceased  {or,  adminis- 
trator with  the  will  annexed,  &c.),  has  this  day,  and  within 
two  years  after  having  given  bond  for  the  discharge  of  his 

said  trust,  paid  to  said  D.  D.  the  sum  of dollars,  said 

sum  being  the  amount  of  a  legacy  given  to  said  D.  I),  by 
said  will  of  said  C.  D. ;  now,  therefore,  if  the  said  D.  D. 

shall  refund  to  said  A.  B.  the  said  sum  of dollars,  or 

so  much  thereof  as  may  be  necessary  to  satisfy  any  demands 
that  may  be  hereafter  recovered  against  said  estate,  and  shall 
indemnify  the  said  A.  B.  against  all  loss  and  damage  on  ac- 
count of  such  payment,  then  this  obligation  to  be  void,  other- 
wise to  remain  in  full  force. 

Signed,  sealed,  and  delivered 

in  presence  of  D.  D.  (seal.) 

J.  D.  H.  L.   (seal.) 

N.  A.  R.  O.  (seal.) 

ss. ,  A.  D.  18 — .     Examined  and  approved. 

J.  S.,  Judge  of  Probate  Court. 


[No.  56.] 

Petition  for  Allowance  of  further  Time  to  prove  Claims 
against  an  Insolvent  Estate. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and 
for  the  county  of . 

Respectfully  represents  A.  B.,  of,  &c.,  that  he  is  a  creditor 

of  the  estate  of  C.  D.,  late  of ,  in  the  county  of , 

deceased ;  that  at  a  probate  court  holden  in  and  for  said 

county  of  ,  on  the  day  of  ,  A.  D.  18 — ,  said 

estate  was  represented  insolvent,  whereupon  commissioners 
were  appointed  to  receive  and  examine  the  claims  of  credit- 


APPENDIX.  341 

ors  against  the  same,  and  the  term  of  six  months  was  al- 
lowed to  creditors  to  present  and  prove  their  claims ;  that 
the  claim  of  your  petitioner  consists  of  {here  describe  the 
claim)  ;  that  your  petitioner  has  been  absent  fi-om  the  State 
during  the  whole  of  said  terra  of  six  months,  and  had  no 
notice  of  said  proceedings  until  said  term  had  expired  {or, 
state  other  cause  of  the  omission  in  accordance  with  the 
facts),  and  has  thereby  been  prevented  from  presenting  his 
claim  to  said  commissioners. 

Wherefore  your  petitioner  prays  that  further  time  may 
be  allowed  to  creditors  to  present  and  prove  their  claims 
against  said  estate. 

Dated  this day  of ,  A.  D.  18 — . 

A.  B. 


[No.  67.] 
Decree  on  the  foregoing  Petition. 
ss.  At  a  probate  court  holden,  &c. 


On  the  petition  of  A.  B.,  of,  &c.,  representing  that  he  has 
a  claim  against  the  estate  of  C.  D.,  late  of  S.,  in  said  county 

of ,  deceased,  represented  insolvent,  and  that  by  reason 

of,  &c.,  &c.,  he  was  unable  to  present  the  same  to  the  com- 
missioners appointed  to  receive  and  examine  the  claims  of 
creditors  against  said  estate  within  the  time  allowed  by  an 
order  of  this  court  for  that  purpose,  and  has  not  presented 
his  said  claim,  and  praying  that  the  time  allowed  to  credit- 
ors to  present  and  prove  their  claims  against  said  estate 
may  be  extended. 

It  appearing  that  the  prayer  of  said  petition  ought  to  be 

granted,  it  is  decreed,  that  the  further  time  of months 

from  the day  of ,  A.  D.  18 — ,  be  allowed  to  credit- 
ors to  present  and  prove  their  claims  against  said  estate, 
and  that  the  commission  issued  in  tlie  matter  of  said  estate 
be  reopened  accordingly. 

J.  S.,  Judge  of  Probate  Court. 


342  APPENDIX. 


[No.  58.] 

Commissioners'  Notice  of  Time  and  Place  of  Meeting  to 
exam,ine  Claims. 

Commissioners'  Notice.  Estate  of  C.  D.,  late  of  B.,  in 
the  county  of  S.,  deceased,  represented  insolvent. 

The  subscribers,  having  been  appointed  by  the  probate 
court  for  said  county  commissioners  to  receive  and  examine 
all  claims  of  creditors  against  the  estate  of  said  C.  D.,  hereby 

give  notice  that  six  months  from  the day  of ,  A.  D. 

18 — ,  are  allowed  to  creditors  to  present  and  prove  their 
claims  against  said  estate,  and  that  they  will  meet  to  ex- 
amine the  claims  of  creditors  at ,  on  the day  of 

next,  at o'clock  in  the  forenoon. 

B ,  January  1,  18-.  F .  a  |  Commissioners. 


[No.  59.] 

Creditor's  Notice  of  Api^eal  from  Decision  of  the  Commis- 
sioners to  be  filed  in  Probate  Office. 

To  the  Honorable  the  Judge  of  the  Probate  Court  for  the 

county  of ,  and   H.  G.,  administrator  of  the  estate   of 

C.  D.,  late  of  S.,  in  said  county,  deceased. 

A.  B.,  of  S.,  in  said  county,  gives  notice  that  his  claim 
against  the  estate  of  said  C.  D.  having  been  disallowed  by 
the  commissioners  appointed  to  receive  and  examine  the 
claims  of  creditors  against  said  estate,  he  claims  an  appeal 
from  the  decision  of  said   commissioners  to  the   supreme 

judicial  court  {or,  superior  court),  next  to  be  holden  at , 

in  and  for  said  county,  on  the day  of next. 

Dated  the day  of ,  A.  D.  18—. 

A.  B. 


APPENDIX.  343 

[No.  60.] 

Executoi's  Notice  of  Appeal  from  Decision  of  the  Com- 
missioners to  be  filed  in  the  Probate  Office^  and  served  on 
the  Creditor. 

To  the  Honorable  the  Judge  of  the  Probate  Court  for  the 
county  of ,  and  B.  N.  {tlte  adverse  party) ^  of ,  &c. 

H.  J.,  administrator  of  the  estate  of  (or  executor  of  the 
last  will  and  testament  of)  C.  D.,  late  of  said  S.,  deceased, 
represents  that  he  is  dissatisfied  with  the  decision  of  the 
commissioners  appointed  to  receive  and  examine  the  claims 
of  creditors  against  the  estate  of  the  said  C.  D.,  allowing 
the  claim  of  one  B,  N.,  of  said  S.,  and  hereby  gives  notice 
that  he  claims  an  appeal  from  said  decision  of  said  commis- 
sioners to  the  supreme  judicial  court  (or,  superior  court), 

next  to  be  holden  at ,  in  and  for  said  county,  on  the 

of next. 

Dated  this day  of ,  A.  D.  18 — . 

H.  J. 


[No.  61.] 

Agreement  to  submit  Claim  against  an  Insolvent  Estate  to 
Arbitratio?i. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and 
for  the  county  of  A. 

Respectfully  represent  A.  B.,  administi'ator  of  the  estate 
of  C.  D.,  late  of  S.,  in  said  county  of  A.,  deceased,  and  E.  F., 
of,  &c.,  that  said  E,  F.  presented  a  claim,  a  statement  of 
which  is  hereto  annexed,  to  the  commissioners  appointed  to 
receive  and  examine  the  claims  of  creditors  against  said 
estate,  which  claim  was  disallowed  by  said  conunissioners, 
as  by  their  report  filed  in   said  court  appears,  from  which 

disallowance  said  E.  F.  gave  notice  of  an  appeal  to  the 

court,  to  be  held  in  and  for  said  county  on,  &c.,  &c. ;  that 
said  A.  B.  and  E.  F.  have  agreed  to  waive  a  trial  at  law, 
and  to  submit  said  claim  to  the  determination  of  G.  H.,  N. 
O.,  and  A.  II.,  of,  &c.,  arbitrators,  whose  award  thereon,  if 


344  APPENDIX. 

accepted  by  the  court,  shall  be  final.  They  therefore  pray 
that  said  G.  H.,  N.  O.,  and  A.  H.  may  be  accordingly  ap- 
pointed by  a  rule  of  the  probate  court,  agreeably  to  the 
statute  in  such  case  provided. 

Dated  this day  of ,  A.  D.  18—.  A.  B. 

E.  F. 
(Annex  a  statement  of  the  claim  to  be  submitted.) 


[No.  62.] 
Decree  on  the  foregoing. 
At  a  probate  court  holden,  &c. 
On  the  petition  of  A.  B.,  administrator  of  the  estate  of 

C.  D.,  late  of  S.,  in  said  county  of ,  deceased,  and  E. 

F,,  of,  &c.,  praying  that  the  claim  of  said  E.  F.  against  the 
estate  of  said  C.  D.  may  be  submitted  to  the  determination 

of , ,  and ,  arbitrators. 

It  is  ordered  that  said ,  ,  and be  a])pointed 


arbitrators  accordingly. 


J.  S.,  Judge  of  Probate  Court. 


[No.  63.] 
Mule  issued  to  Arbitrators. 

To , ,  and ,  of,  &c. 

You  are  hereby  appointed  arbitrators  to  liquidate  and 
adjust  the  claim  of  E.  F.,  of,  &c.,  against  the  estate  of  C.  D., 
late  of  S.,  in  the  county  of ,  deceased. 

You  will  appoint  a  convenient  time  and  place  to  hear  the 
parties  interested  in  said  claim,  and  give  sufficient  notice 
thereof  to  the  said  A.  B.  and  E.  F.  In  case  either  the  said 
A.  B.  or  E.  F.  shall  neglect  to  attend,  after  having  been  duly 
notified,  you  will  proceed  ex  2yarte. 

And  you  will  return  this  rule,  with  your  doings  thereon, 
to  the  {irobute  court,  as  soon  as  may  be. 

In  witness  whereof,  I  have  hereunto  set  my  hand,  &c.,  &c. 
J.  S.,  Judge  of  Probate  Court. 


APPENDIX.  345 

[No.  64.] 
Aioard  of  Arbitrators. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and 
for  the  county  of  A. 

The  subscribers,  arbitrators  appointed  by  the  probate 
court  to  hquidate  and  adjust  the  claim  of  E.  F.,  of,  &c., 
against  the  estate  of  C.  D.,  late  of,  &c.,  after  having  duly 
notified  the  parties  interested  therein,   met  them  at,  &c., 

on  the day  of,  tfec,  and  after  having  heard  their  several 

pleas,  proofs,  and  allegations,  and  maturely  considered  the 
same,  do  award  and  determine,  and  this  is  our  final  award 
and  determination  in  the  premises,  to  wit :  that  there  is 
due  to  the  said  E.  F.  from  the  estate  of  the  said  C.  D,  the 

sum  of dollars,  and  no  more.     And  we  further  award 

that  the  sum  of dollars,  being  the  amount  of  the  costs 

of  arbitration,  be  paid  as  follows,  to  wit : ,  all  which  is 

duly  submitted.  Dated  at,  &c. 

&c.,  &c. 

Arbitrators. 


[No.  65.] 

JBond  bf  Heirs  to  pay  Debts,  given  to  prevent  Sale  of  Ileal 

Estate. 

Kxow  ALL  MEX  BY  THESE  PRESENTS,  that  wc,  A.  B.  and 
G.  B.,  both  of  S.,  in  the  county  of  W.,  as  principals,  and 
H.  O.  and  B.  A.,  both  of  said  S.,  as  sureties,  and  all  within  the 
Commonwealth  of  Massachusetts,  are  holden  and  stand  firmly 
bound  and  obliged  unto  11.  J.,  of  said  S.,  in  the  full  and  just 
sum  of dollars,  to  be  paid  to  the  said  H.  J.,  his  execu- 
tors, administrators,  and  assigns,  to  the  true  payment  whereof 
we  do  bind  ourselves  and  each  of  us,  our  and  each  of  our 
heirs,  executors,  and  administrators,  jointly  and  severally, 

by  these  presents.      Sealed  with  our  seals.     Dated  the 

day  of ,  A.  D.  18—. 

The  condition  of  this  obligation  is  such,  that,  whereas 
the  said  II.  J.,  in  his  capacity  of  administrator  of  the  estate 


3-16  APPENDIX. 

of  C.  D.,  late  of  said  S.,  deceased,  has  presented  to  the  pro- 
bate court  in  said  county  his  petition  for  license  to  sell  the 
real  estate  of  the  said  C.  D.  for  the  payment  of  the  debts 
due  from  said  estate,  and  the  chai-ges  of  administration  ; 
and  whereas  the  said  A.  B.  and  G.  B.  are  heirs  at  law  of 
said  deceased,  and  are  desiruus  that  said  real  estate  should 
not  be  sold  ;  now,  therefore,  if  the  said  A.  B.  and  G.  B. 
shall  2:)ay  all  the  debts  mentioned  in  the  said  petition  of  said 
H.  J.  that  shall  eventually  be  found  due  from  said  estate, 
with  the  charges  of  administering  the  same,  so  far  as  the 
goods,  chattels,  rights,  and  credits  of  said  deceased  shall  be 
insufficient  therefor,  then  the  above-written  obligation  shall 
be  void,  or  else  shall  abide  and  remain  in  full  force. 

Executed  in  presence  of  A.  B.  (seal.) 

W.  II.  G.  B.  (seal.) 

J.     P.  H.  O.  (seal.) 

B.  A.  (seal.) 

ss. ,  A.  D.  18 — .     Examined  and  approved. 

J.  S.,  Judge  of  the  Probate  Court. 


[No.  66.] 
Notice  of  Sale  of  Land  under  License. 

By  license  of  the  probate  court  for  the  county  of ,  the 

subscriber,  administrator  of  the  estate  of  C.  D.,  late  of  S.,  in 
said  county,  deceased  (or,  executor  of  the  last  will  and  tes- 
tament of,  &c. ;  or,  guardian  of  E.  F.),  will  sell  at  public 

auction  on  the  premises  (or,  at  the  house  of  ),  on  the 

day  of  next,  at o'clock  in  the noon,  the 

house  and  lot  on  Street,  in  said  S.,  belonging  to  the  es- 
tate of  said  C.  D.  {pr^  belonging  to  said  E.  F.),  said  property 
is  {liere  state  any  facts  ichich  the  interests  of  the  estate  require 
to  he  brought  to  the  notice  of  bidders). 

S , ,  A.  D.  18 — .  A.  B.,  Admhiistrator 

{or^  Executor  or  Guardian). 


APPENDIX.  347 

[No.  67.] 
Administrator'' s  Deed  of  Lands. 

Know  all  men  by  these  Pkesents,  that  I,  A.  B.,  of 

S,, county,  Massachusetts,  administratoi"  of  the  estate 

of  C.  D.,  Lite  of  said  S.,  deceased,  by  authority  of  the  pro- 
bate court  holden  at  ,  in  and  for  said  county,  on  the 

day  of  ,  A.  D,  18 — ,  and  in  consideration  of  

dollars  paid  by  F.  G.,  of  H.,  in  said  county,  the  receipt 
whereof  is  hereby  acknowledged,  do  hereby  give,  grant, 
sell,  and  convey  unto  the  said  F.  G.,  his  heirs  and  assigns, 
a  certain  tract  of  land  situate  in  said  H.,  bounded  and  de- 
scribed as  follows,  to  wit  (Ae?"e  describe  the  land). 

To  have  and  to  hold  the  above-granted  premises  to  the 
said  F.  G.,  his  heirs  and  assigns,  to  his  and  their  use  and 
behoof  for  ever  ;  and  I  do  for  myself,  my  heirs,  executors, 
and  administrators  covenant  with  the  said  F.  G.,  his  heirs 
and  assigns,  that  in  making  sale  of  the  real  estate  above 
described,  I  am  duly  authorized  by  the  court  aforesaid  ;  that 
I  have  complied  with  the  order  of  said  court,  by  giving  bond 
and  taking  the  oath  by  law  required,  and  by  giving  public 
notice  of  the  intended  sale  as  therein  directed  ;  and  that  I 
have  in  all  things  observed  the  rules  and  directions  of  law 
relative  thei'eto. 

In  witness  whereof,  I,  the  said  A.  B.,  have  hereunto  set 
my  hand  and  seal  this day  of ,  A.  D.  18 — . 

Executed  and  delivered  A.  B  (seal.) 

in  presence  of 
B.  J. 
J.   C. 

[The  above  form  may  be  used  by  guardians ;  the  only 
change  necessary  being  the  substitution  of  the  words, 
"  Guardian  of  A.  D,,  a  minor,  and  heir  of  C.  D.,  late  of  said 
S.,  deceased,"  for  the  words,  "  administrator,"  &c,] 


348  APPENDIX. 

[No.  68.] 

Petition  for  the  Conveyance  of  Land  of  a  deceased  Person^ 

or  Ward,  according  to  Agreement. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and 
for  tlie  county  of . 

Respectfully  represents  A.  B.,  of  H.,  in  said  county,  that 
C.  D.,  late  of  said  H.,  deceased,  during  his  lifetime,  to  wit 
(or,  that  G.  H.,  of  II.,  in  said  county,  an  insane  person,  and 
now  under  guardianship,  at  a  time  previous  to  such  guar- 
dianship, to  wil),  on  the  day  of ,  A.  D.  18 — ,  en- 
tered into  an  agreement  in  writing  with  your  j^etitioner,  a 
copy  of  which  agreement  is  hereto  annexed,  whereby  said 
C.  D.  (or,  G.  H.)  agreed  with  your  petitioner  to  convey  to 
him,  upon  the  terms  and  conditions  set  forth  in  said  ngTee- 
ment,  certain  real  estate  situate  in  B.,  in  said  county,  and 
fully  described  in  said  agreement ;  that  said  C.  D.  died  with- 
out making  such  conveyance  {or,  that  said  G.  H.  has  not 
made  such  conveyance,  and  is  not  now  competent  to  make 
the  same  by  reason  of  such  guardianship)  ;  and  that  your 
petitioner  is  ready  to  perform  all  the  conditions  of  said 
agreement  on  his  pai't. 

Wherefore  your  petitioner  prays  that  a  specific  perform- 
ance of  said  agreement  may  be  decreed,  and  that  E.  F.,  ad- 
ministrator of  the  estate  of  said  C.  D.  (or,  guardian  of  said 
G.  H.),  may  be  ordered  to  convey  said  real  estate  to  him 
agreeably  to  the  terms  thereof. 

Dated,  &c.  .  A.  B. 


[No.  69.] 

Decree  on  the  foregoing  Petition. 

At  a  probate  court  holden,  &c. 
On  the  petition  of  A.  B,,  of  H.,  in  said  county,  representing 
that  during  the  lifetime  of  CD.,  late  of  said  II.,  deceased,  he 
and  the  said  C.  D.  made  an  agreement  in  writing  whereby 
the  said  C.  D,  agreed  to  convey  to  said  A.  B.  certain  real 
estate  situate  in  B.,  in  said  county,  and  described  as  follows, 
to  wit,  &c.,  upon  the  terms  and  conditions  therein  set  forth; 


APPENDIX.  349 

that  said  C.  D.  died  without  making  such  conveyance ;  and 
praying  that  E.  F.,  administrator  of  the  estate  of  said  C.  D., 
may  be  ordered  to  make  such  conveyance,  according  to  the 
terms  of  said  agreement. 

It  appearing  that  notice  thereof  has  been  given  to  all  par- 
ties interested,  and  upon  a  hearing  thereon  that  said  C.  D., 
if  living,  would  be  by  law  required  to  make  a  conveyance  of 
said  real  estate  to  said  A.  B.,  it  is  decreed  that  E.  F.,  admin- 
istrator as  aforesaid,  make  conveyance  of  said  real  estate  to 
said  A.  B.,  payment  being  first  made  to  said  administrator  by 
said  A.B.,  of  the  sum  named  in  said  agreement,  said  convey- 
ance when  made  to  have  the  like  force  and  eiiect  as  if  made 
to  said  A.  B.  by  said  C.  D.  during  the  lifetime  of  said  C.  D. 

J.  S.,  Judge  of  Probate  Court. 


[No.  70.] 

Petition  that  an  Administrator  may  he  cited  to  settle  Ms 
Account  in  Probate  Court. 

To  the  Honorable  the  Judge  of  the  Probate  Court  for  the 
county  of . 

Respectfully  represents  B.  D,,  of  S.,  in  said  county,  that 
he  is  heir  at  law  of  C.  D.,  late  of  said  S.,  deceased,  and  is 
interested  in  the  estate  of  the  said  C.  D. ;  that  at  a  probate 

court  holden  at  C,  in  said  county,  on  the day  of , 

A.  D.  18 — ,  one  A.  B.,  of  said  S.,  was  duly  appointed  admin- 
istrator of  the  estate  of  said  C.  D.,  and  gave  bond  for  the 
faithful  discharge  of  said  trust ;  that  more  than  one  year  has 
elapsed  since  the  said  appointment  of  the  said  A.  B.,  but 
that  the  said  A.  B.  has  neglected,  and  still  neglects,  to  render 
his  account  of  administration.  Wherefore  your  petitioner 
prays  that  said  administrator  may  be  cited  to  settle  his  ac- 
counts in  the  probate  court,  and  that  your  petitioner  may 
be  authorized  to  bring  an  action  in  the  supreme  judicial 
court  upon  the  bond  of  said  administrator,  in  the  name  of 
the  judge  of  the  jjrobate  court,  for  the  recovery  of  all  dam- 
ages sustained  by  such  neglect  of  said  A.  B. 

Dated  this day  of ,  A.  D.  18—. 

B.  D. 


850  APPENDIX. 

[No.  71.] 

Petition  of  Child  omitted  in  the  Will  of  his  Parent  for 
distributive  Share. 

To  the  Honoi-able  the  Judge  of  the  Probate  Court  for  the 

county  of , 

Respectfully  represents  A,  B.,  of ,  in  said  county  of 

-,  that  he  is  guardian  of  E.  D.,  a  minor  child  of  C.  D., 


late  of ,  in  said  county,  deceased,  testate  ;  that  the  said 

C.  D.  made  no  provision  for  the  said  E.  D.,  either  in  his  life- 
time or  in  his  last  will  and  testament;  and  that  the  omission 
of  the  said  C.  D.  to  provide  for  the  said  E.  D.  in  his  will 
was  not  intentional,  but  was  occasioned  by  accident  and 
mistake. 

Wherefore  your  petitioner  pram's  that  the  same  share  of 
the  personal  estate  of  said  deceased  that  said  E.  D.  would 
have  been  entitled  to  if  said  C.  D.  had  died  intestate  may 
be  assigned  to  the  said  E.  D.,  agreeably  to  the  statute  in 
such  case  provided. 

Dated  this day  of ,  A.  D.  18—. 

A.  B. 


[Xo.  72.] 
Pond  of  Pistrihiitee,  to  indemnify  Administrator. 

Know  all  mex  by  thkse  Presents,  that  we,  D.  D.,  of  S. 
county,  Massachusetts,  as  principal,  and  H.  L.  and  R.  O,, 
both  of  said  S.,  as  sureties,  are  held  and  firmly  bound  unto 

A.  B.,  of  H.,  in  said  county,  in  the  sum  of dollars,  to 

be  paid  to  the  said  A.  B.,  his  execJutors,  administrators,  and 
assigns,  to  which  payment  well  and  truly  to  be  made  we 
bind  ourselves  and  each  of  us,  our  and  each  of  our  heirs, 
executors,  and  administrators,  jointly  and  severally,  firmly 

by  these  presents.     Sealed  with  our  seals.     Dated  this 

day  of ,  A.  D.  18—. 

The  condition  of  this  oblig.ition  is  such,  that,  whereas  the 
said  A.  B.,  in  his  capacity  of  administrator  of  the  estate  of 
C.  D.,  late  of  said  S.,  deceased,  has  this  day,  and  within  two 
years  after  having  given  bond  for  the  discharge  of  said  trust, 


APPENDIX.  351 

paid  to  the  said  D.  D.  the  sum  of dollars,  said  sum  being 

his  distributive  share  of  the  estate  of  the  said  C.  D. ;  now, 
therefore,  if  the  said  D.  D.  shall  refund  to  the  said  A.  B.  the 
said  sum  of dollars,  or  so  much  thereof  as  may  be  neces- 
sary to  satisfy  any  demands  that  may  be  hereafter  recovered 
against  said  estate,  and  shall  indemnify  the  said  A.  B.  against 
all  loss  and  damage  on  account  of  such  j^'iyii^ent,  then  this 
obligation  to  be  void,  otherwise  to  remain  in  full  force. 
Executed  in  presence  of  D.  D.  (seal.) 

L.  H.  H.  L.   (seal.) 

O.  R.  R.  O.  (seal.) 

,  ss. ,  A.  D.  18 — .     Examined  and  approved. 

J.  S.,  Judge  of  Probate  Court. 


[No.  73.] 

Petition  of  Person  entitled  to  Money  deposited  hy  an  Execu- 
tor^ cC'c,  under  a  Decree  of  Distribution. 

To  the  Honorable  the  Judge  of  the  Probate  Coiirt  for  the 
county  of . 

Respectfully  represents  A.  D.,  of,  &c.,  that  he  is  heir  at 

law  of  C.  D.,  late  of  S.,  in   said  county  of  ,  deceased  ; 

that  a  probate  court  holden  at  W.,  in  and  for  said  county, 

on  the day  of  ,  A.  D.  18 — ,  H.  J.,  administrator  of 

the  estate  of  said  deceased,  was  ordered  to  distribute  and 
pay  the  balance  of  said  estate  in  his  hands  to  the  j^ersons 
named  in  said  order,  and  in  the  amounts  therein  specified; 
that,  according  to  said  order,  your  petitioner  was  entitled  to 

receive  the  sum  of  8 ,  as  his  share  of  said  balance  ;  and 

that  on  the day  of ,  A.  D.  18 — ,  said  administrator 

deposited  said  sum  of  % in  the savings  bank,  in  the 

name  of  the  judge  of  the  probate  court,  to  accumulate  for 
the  benefit  of  your  jietitioner ;  all  of  which  appears  by  the 
decrees  of  said  court,  and  tlic  accounts  of  said  administrator 
recorded  in  the  probate  office ;  and  that  your  petitioner  is 

entitled  to  the  said  sum  of  % ,  dejiosited  as  aforesaid,  and 

to  the  interest  accrued  thereon. 


352  APPENDIX. 

"Wherefore  your  petitioner  prays  that  said  sura  of  $ , 

and  the  interest  thereon,  may  be  paid  over  and  transferred 
to  him. 

Dated  the day  of ,  A.  D.  18—. 

A.  D. 


[No.  74.] 
Order  on  the  foregoing  Petition. 

ss. 


At  a  probate  court  holden  at ,  in  and  for  said  county 

of ,  on  the,  &e. 

On  the  petition  of  A.  D.,  praying  that  the  sum  of  

dollars,  deposited  in  the  name  of  the  judge  of  the  probate 

court  of  the  county  of ,  in  the bank,  on  the 

day  of ,  A.  D.  18 — ,  by  H.  J.,  administrator  of  the  estate 

of  C.  D.,  late  of  S.,  in  said  county,  deceased,  with  the  inter- 
est accrued  thereon,  may  be  paid  over  and  transferred  to 
him  ;  it  appearing  that  said  A.  D,  is  the  person  entitled  by 
law  to  receive  the  same,  it  is  therefore  ordered,  that  the 

treasurer  of  said  bank  pay  over  and  transfer  to  the 

said  A.  D.  the  sum  of  dollars,  deposited  as  aforesaid, 

with  any  and  all  sums  of  interest  that  may  have  accrued 
thereon  since  the  time  when  said  deposit  was  made. 

J.  S.,  Judge  of  Probate  Court. 


[No.  75.] 

Notice  to  Heirs  or  Devisees  of  the  Time  and  Place  for 
making  Partition. 

To  A.  B.,  of,  &c.,  and  J,  H.  and  A.  N.,  both  of,  &c.,  and 
P.  S.,  guardian  (or  agent)  of  said  A.  N. 

You  are  hereby  notified  that  the  undersigned  have  been 

appointed  by  the  probate  court  of  the  county  of  ,  to 

make  partition  of  all  the  real  estate  of  C.  D.,  late  of  S.,  in 
said  county,  deceased,  lying  within  this  State,  wliich  any 
party  interested  requires  to  have  included  in  the  partition 


APPENDIX.  353 

among  the  heirs  (or  devisees)  of  said  deceased.     And  that 

the day  of ,  in  the  year  18 — ,  and  the  house  of  E. 

F.,  in  said  S.,  are  the  time  and  place  appointed  for  making 
said  partition,  at  which  time  and  place  you  may  be  present. 
Dated  this day  of ,  A.  D.  18—. 

Commissioners. 


H. 

M. 

0. 

H. 

W. 

S. 

[No.  76.] 

Widow^s  Waiver  of  the  Provision  made  for  her  in  her 
JIusband''s  Will. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and 
for  the  county  of  H. 

Respectfully  represents  A.  D.,  of,  &c.,  that  she  is  widow 
of  C.  D.,  late  of  S.,  in  said  county,  deceased ;  that  said  de- 
ceased made  certain  provision  for  her  in  his  last  will,  which 
will  has  been  duly  proved  and  allowed  in  said  court  within 
six  months  last  past,  and  that  she  hereby  waives  the  provi- 
sion so  made  for  her  in  said  will,  and  gives  notice  that  she 
will  claim  her  dower  in  the  lands  of  said  deceased,  and  her 
distributive  share  of  his  personal  estate. 

Dated  this day  of ,  A.  D.  18—. 

A.  D. 


[No.  77.] 

Notice  to  Parties  interested  of  the  Time  and  Place  appointed 
to  set  off  Dotoer. 

To  A.  B.,  E.  D.,  and  J.  H.,  all  of,  &c. 

You  are  hereby  notified  that  the  undersigned  have  been 
appointed  by  the  probate  court  of  the  county  of com- 
missioners to  set  off" the  dower  of  S.  D.,  widow  of  CD.,  late 
of  S.,  in  said  county,  deceased,  in  the  lands  of  which  he  died 

seised  in  this  Commonwealth.     And  that  the  day  of 

,  in  the  year  18 — ,  and  the  house  of ,  in  said  S.,  are 

23 


354  APPENDIX. 

the  time  and  place  appointed  for  setting  off  said  dower,  at 
which  time  and  place  you  may  be  heard  in  relation  thereto. 

Dated  this day  of ,  A.  D.  18—. 

A.   M.  ^ 

Com  7nissio7iers. 


j\.  ivi.  ^ 
O.  H.  \ 
W.  S.  ) 


[No.  78.] 

Petition  that  the  AdministratOT  may  he  required  to  furnish 
a  new  Hond. 

To  the  Honorable  tlie  Judge  of  the  Probate  Court  for  the 
county  of . 

Respectfully  represents  D.  D.,  of  S.,  in  said  county,  that 
he  is  heir  at  law  of  C.  D.,  late  of  said  S.,  deceased,  and  is 
interested  in  the  estate  of  the  said  C.  D. ;  that  at  a  probate 

court  holden  at  B.,  in  and  for  said  county,  on  the day 

of last  past,  H.  J.,  of  W.,  in  said  county,  was  duly  ap- 
pointed administrator  of  said  estate,  and  gave  bond  in  the 

sum  of dollars,  Avith  E.  F.  and  G.  II.,  both  of  said  W., 

as  sureties,  for  the  faithful  discharge  of  his  trust ;  that  said 
estate  is  not  fully  administered,  and  that  said  sureties  ai*e 
not  sufficient  to  ensure  the  faithful  discharge  of  said  trust, 
the  said  G.  PI.  having  removed  from  the  Commonwealth  {or 
become  insolvent,  &c.).  Wherefore  he  prays  that  said  H. 
J.  may  be  required  to  give  a  new  bond,  with  such  sureties 
and  in  such  sum  as  the  court  may  direct. 

Dated  this day  of ,  A.  D.  18—. 

D.  D. 


[No.  79.1 
Decree  on  the  foregoing  Petition. 
ss.  At  a  probate  court  holden  at,  &c. 


On  the  petition  of  D.  D.,  representing  that  he  is  heir  at 
law  of  C.  D.,  late  of  S.,  in  said  county  of ,  deceased,  and 


APPENDIX.  355 

that  the  sureties  in  the  bond  of  H.  J.,  administrator  of  the 
estate  of  said  C.  D.,  are  not  sufficient  to  ensure  the  f.iithful 
discharofe  of  his  said  trust,  for  the  reason,  &c.,  and  praying 
that  said  H.  J.  may  be  required  to  furnish  a  new  bond  with 
sufficient  sureties  : 

It  apjjearing  that  notice  thereof  has  been  duly  given  to 
said  H.  J.,  and  that  the  allegations  contained  in  said  petition 
are  true ;  it  is  decreed  that  said  H.  J.  file  in  the  probate 

office,  on  or  before  the  day  of next,  a  new  bond, 

with  further  and  sufficient  sureties,  in  the  sum  of  dol- 
lars, for  the  faithful  discharge  of  his  said  trust. 

J.  S.,  Judge  of  Pfobate  Court. 


[No.  80.] 
Petition  of  Surety  in  a  Probate  Pond  to  he  discharged. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and 
for  the  county  of  . 

Respectfully  represents  E.  F.,  of  W.,  in  said  county,  that 

at  a  probate  court  holden  at  said  W.,  on  the  day  of 

,  A.  D.  18 — ,  H.  J.,  of  said  W.,  was  duly  appointed  ex- 
ecutor of  the  last  will  and  testament  of  C.  D.,  late  of  S.,  in 
said  county,  deceased,  and  gave  bond  for  the  faithful  dis- 
charge of  said  trust ;  that  your  petitioner  is  one  of  the 
sureties  in  said  bond  ;  that  the  estate  of  the  said  C.  D,  is 
not  yet  fully  administeied,  and  that  your  petitioner  is  unwill- 
ing to  remain  longer  liable  as  surety  in  said  bond,  for  the 
reason  that  {here  state  the  reason  for  which  the  apjMcatio?! 
is  made). 

Wherefore  your  petitioner  prays  that  he  may  be  discharged 
from  all  further  responsibility  as  such  surety,  and  that  said 
H.  J.  may  be  ordered  to  furnish  a  new  bond. 

Dated  this day  of ,  A.  D.  18 — . 

E.  F. 


356       '  APPENDIX. 

[No.  81.] 
Decree  on  the  foregoing  Petition. 
ss.  At  a  probate  court  holden,  &c. 


On  the  petition  of  E.  F.,  of  W.,  in  said  county  of ,  one 

of  the  sureties  in  the  bond  of  II.  J.,  executor  of  tlie  last  will 
and  testament  of  C.  D.,  late  of  S.,  in  said  county,  deceased, 
praying  that  he  may  be  disch;irg;ed  from  all  further  respon- 
sibility as  such  surety,  for  the  reason  that,  &c.,  and  that  said 
II.  J.  may  be  ordered  to  furnish  a  new  bond. 

All  persons  interested  having  had  due  notice  thereof,  and 
it  appearing  reasonable  and  proper  that  the  prayer  of  said 
petition  be  granted ;  it  is  decreed,  that  said  H.  J.  file  in  the 

probate  office,  on  or  before  the day  of next,  a  new 

bond,  with  further  and  sufficient  sureties,  in  the  sum  of 

dollars,  for  the  faithful  discharge  of  his  said  trust,  and  that 
said  E.  F.  be  discharged  from  all  further  responsibility  as 
such  surety,  whenever  such  new  bond  shall  have  been  filed 
and  approved. 

J.  S.,  Judge  of  Probate  Court. 


[No.  82.] 
Petition  for  Leave  to  sue  an  Administration  Pond. 

To  the  PTonorable  the  Judge  of  the  Probate  Court  for  the 
county  of . 

Respectfully  represents  D.  H.,  of  S.,  in  said  county,  that  he 
is  a  creditor  of  the  estate  of  C.  D.,  late  of  said  S.,  deceased ; 

that  at  a  probate  court  holden  at ,  in  and  for  said  county, 

on  the day  of  ,  A.  D.  18 — ,  A.  B.,  of  W.,  in  said 

county,  was  duly  appointed  administrator  of  said  estate,  and 
gave  bond,  with  E.  F.  and  G.  H.,  both  of  said  W.,  as  sure- 
ties, for  the  faithful  discharge  of  said  trust ;  that  afterwards, 
to  wit,  on  the day  of  ,  18 — ,  the  said  A.  B.  repre- 
sented said  estate  to  be  insolvent,  and  that  upon  such  rep- 
resentation commissioners  were  duly  appointed  to  receive 
and  examine  the  claims  of  creditors  against  said  estate; 
that  said  commissioners  made  their  return  to  the  probate 


APPENDIX.  357 

court  on  the   day  of  last  past,  and  reported  the 

claim  of  your  petitioner  against  said  estate  to  have  been 
allowed  by  them ;  that  more  than  six  months  have  elapsed 
since  said  return  was  made  by  said  commissioners,  but  that 
said  A.  B.  has  neglected  and  still  neglects  to  render  any 
account  of  his  administration  of  said  estate,  and  is  thereby 
delaying  the  distribution  of  the  assets  in  his  hands  among 
the  persons  entitled  thereto  {or  state  any  other  rnaladniinis- 
tration^  as  the  facts  of  the  case  require).  Wherefore  your 
petitioner  prays  that  he  may  be  authorized  to  bring  an  action 
in  the  supix-me  judicial  court  uj^on  the  bond  of  said  admin- 
istrator in  the  name  of  the  judge  of  the  probate  court,  for 
the  recovery  of  the  damage  sustained  by  such  neglect  of  the 
said  A.  B. 

Dated  this day  of ,  A.  D.  18 — . 

D.  H. 


[No.  83.] 
Decree  on  the  foregoing  Petition. 

At  a  probate  court  holden,  &c. 

On  the  petition  of  D.  H.,  of  S.,  in  said  county,  represent- 
ing that  he  is  a  creditor  of  the  estate  of  C.  D.,  late  of  said  S., 
deceased,  and  that  A,  B.,  administrator  of  said  estate,  has 
neglected  to  render  his  account  of  administration,  and  has 
thereby  delayed  the  distribution  of  said  estate  among  the 
persons  entitled  thereto,  and  j^raying  that  he  may  be  author- 
ized to  bring  an  action,  in  the  name  of  the  judge  of  the  pro- 
bate court,  upon  the  bond  of  said  A.  B. : 

It  appearing  that  notice  thereof  has  been  given  as  ordered, 
and  that  more  than  six  months  have  elapsed  since  the  return 
of  the  commissioners  appointed  to  receive  and  examine  the 
claims  of  creditors  against  said  estate  was  made  to  this  court, 
and  that  said  A.  B.has  neglected  and  still  neglects  to  render 
and  settle  his  accounts,  and  is  thereby  delaying  the  distri- 
bution of  said  estate,  and  that  said  D.  H.  is  aggrieved  by 
such  neglect  of  said  A.  B. ;  it  is  decreed,  that  said  D.  II.  be 
and  he  is  hereby  authorized  to  bring  an  action  in  the  su- 


358  APPENDIX. 


prerae  judicial  court  on  the  bond  of  the  said  A.  B.,  in  the 
name  of  the  judge  of  tlie  probate  court,  for  the  recovery  of 
any  and  all  damages  sustained  by  such  maladministration 
of  said  A.  B. 

J.  S.,  Judge  of  Probate  Court. 


[No.  84.] 
Notice  of  Appeal  to  he  filed  in  the  Probate  Office. 

To  the  Honorable  the  Judge  of  the  Probate  Court  for  the 
county  of . 

A.  B.,  of  S.,  in  said  county,  represents  that  he  is  heir  at 
law  of  C.  D.,  late  of  said  S.,  deceased,  and  is  interested 
in  the  estate  of  said  deceased  ;  that  lie  is  aggrieved  by  a 
decree  of  the  probate  court,  holden  at  B.,  in  said  county,  on 

the day  of last  past,  admitting  to  probate  a  certain 

instrument  purporting  to  be  the  last  will  and  testament  of 
the  said  C.  D.  (or,  otherioise  designate  the  decree,  as  the  facts 
require).  And  he  hereby  gives  notice  that  he  claims  an 
appeal  from  said  decree  to  the  supreme  judicial  court. 

Dated  this day  of ,  A.  D.  18—. 

A.  B. 


[No.  85.] 

Reasons  of  Ap2?eal  to  be  fled  in  Probate  Court  and  served 

on  the  adverse  Party. 

To  the  Honorable  the  Judge  of  the  Probate  Court  for  the 

county  of ,  and  F.  G.  (the  adverse  party),  of  H.,  in  said 

county. 

A.  B.,  of  S.,  in  said  county,  heir  at  law  of  C.  D.,  late  of 
said  S.,  deceased,  having  given  due  notice  at  the  probate 
office  that  he  claimed  an  appeal  from  the  decree  of  the  pro- 
bate court  holden  at  B.,  in  the  county  aforesaid,  on  the 

day  of last  past,  admitting  to  probate  a  certain  instru- 
ment purporting  to  be  the  lust  will  and  testament  of  said 
C.  D.,  now  files  in  the  probate  office  his  reasons  of  appeal,  as 
follows,  to  wit : 


APPENDIX.  359 

1st,  Because  the  said  C.  T>.,  at  the  time  when  he  executed 
said  instrument,  was  not  of  sound  mind. 

2d.  Because  the  persons  who  subscribed  said  instrument 
as  witnesses  did  not  attest  and  subscribe  the  same  in  the 
presence  of  the  said  C.  D,,  &c.,  &c. 

Dated  this day  of ,  A.  D.  18 — . 

A.  B. 


[No.  86.] 
Petition  for  leave  to  enter  an  Appeal  not  seasonably  claimed. 

To  the  Honorable  the  Justices  of  the  Supreme  Judicial 

Court,  next  to  be  holden  at ,  in  and  for  the  county  of 

,  on  the Tuesday  of ,  A.  D.  18 — . 

Respectfully  represents  A.  B.,  of  S.,  in  said  county,  that 
he  is  heir  at  law  of  C.  D.,  late  of  said  S.,  deceased,  an<l  is  in- 
terested in  the  estate  of  said  deceased  ;  that  he  is  aggrieved 
by  a  decree  of  the  probate  court  holden  at  B.,  in  said  county, 

within  two  years  last  past,  to  wit,  on   the  day  of , 

A.  D.  18 — ,  admitting  to  probate  a  certain  instrument  pur- 
porting to  be  the  hist  will  and  testament  of  the  said  C.  D., 
copies  of  which  instrument  and  of  said  decree  are  hereto 
annexed ;  that  at  the  time  of  passing  said  decree  your 
petitioner  was  without  the  United  States,  and  has  been  with- 
out the  United  States  until  within  the  three  months  last  past ; 
tliat  his  omission  to  claim  an  appeal  from  said  decree,  and  to 
give  notice  thereof  at  the  probate  office,  was  without  default 
on  his  jiart.  Your  petitioner  further  represents  that  the 
said  C.  D.,  at  the  time  when  he  executed  said  instrument, 
was  not  of  sound  mind  {or  state  other  reasons  of  appeal  in 
accordance  vnth  the  facts),  and  that  justice  requires  a  revi- 
sion of  the  case.  He  therefore  prays  that  he  may  be  allowed 
to  enter  and  prosecute  an  appeal  from  said  decree  of  the 
jjrobate  court. 

Dated  this day  of ,  A.  D.  18—. 

A.  B. 


860  APPENDIX. 

[No.  87.] 
Waiver  of  Appeal. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and 
for  the  county  of  B. 

Respectfully  represents  A.  B.,  of  S.,  in  said  county  of  B., 
that  he  is  heir  at  law  of  C.  D.,  late  of  said  S.,  deceased  ;  that 

on  the day  of  ,  &c.,  he  gave  notice  at  the  piobate 

office  of  his  ai)i)eal  from  a  decree  of  the  probate  court, 
holden,  &c.,  admitting  to  probate  a  certain  instrument,  pur- 
porting to  be  the  last  will  and  testament  of  said  C.  D. ;  that 
he  hereby  waives  his  said  appeal,  and  consents  that  further 
proceedings  may  be  had  in  the  probate  court,  in  the  matter 
of  said  will,  as  if  said  appeal  had  not  been  taken. 
Dated  at,  &c. 

A.  B. 


[No.  88.] 

Complaint  for  Affirmation  of  Decree,  where  Appellant  fails 
to  enter  his  Appeal. 

To  the  Honorable  the  Justices  of  the  Supreme  Judicial 

Court  holden  at ,  in  and  for  the  county  of ,  on  the 

Tuesday  of ,  A.  D.  18—. 

D.  D.,  of  S.,  in  said  county,  complains  that  at  a  probate 

court  holden  at  B.,   in  and  for  said    county,   on    the   

day  of  ,  A.  D.  18 — ,  the  last  will  and  testament  of  C. 

D.,  late  of  said  S.,  deceased,  was  duly  admitted  to  probate 
by  a  decree  of  said  court,  as  fully  appeais  from  the  coj)y  of 
the  record  filed  herewith,  from  which  decree  one  A.  B.,  of 
said  S.,  appealed  to  this  court ;  that  said  A.  B.  has  failed  to 
enter  and  prosecute  his  said  aj^peal ;  that  your  petitioner 
is  the  executor  named  in  said  will  {or,  is  made  a  legatee  in 
and  by  said  will,  &c.),  and  is  interested  in  the  probate 
thereof.  Wlierefore  your  comi)lainant  prays  that  said  de- 
cree of  the  probate  court  may  be  affirmed,  with  costs. 

Dated  this day  of ,  A.  D.  18—. 

D.  D. 


APPENDIX.  361 

[No.  89.] 

Petition  of  Husband  of  an  Insane  Woman  that  her  right 
of  Dower  in  his  Lands  may  be  released. 

To  the  Honorable  the  Judge  of  the  Probate  Court  for  the 
county  of . 

Respectfully  represents  A.  B.,  of  S.,  in  said  county,  that 
he  is  seised  of  a  certain  parcel  of  real  estate  situate  in  said 
S.,  bounded  and  described  as  follows  {here  insert  a  descrip- 
tion of  the  land) ;  that  he  is  desirous  of  conveying  said  real 
estate  in  fee  {or,  in  mortgage),  but  that  A.  B.,  his  wife,  is 
incompetent,  by  reason  of  insanity,  to  release  her  right  of 
dower  {or,  homestead)  in  the  same  ;  that  the  interests  of 
your  petitioner  require  that  such  conveyance  should  be  made, 
and  that  the  right  of  his  said  wife  in  said  real  estate  should 
be  released;  that  {here  state  any  particular  facts  or  reasons 
why  the  petition  should  be  granted).  He  therefore  prays 
that  C.  D.,  guardian  of  said  H.  B.,  may  be  authorized  and 
empowered  to  join  him  in  a  conveyance  of  said  real  estate,  for 
the  purpose  of  releasing  her  right  of  dower  {or,  right  of 
homestead)  therein. 

Dated  this day  of ,  A.  D.  18—. 

A.  B. 


[No.  90.] 
Decree  on  the  foregoing  Petition. 
ss.  At  a  probate  court  holden,  &c. 


On  the  petition  of  A.  B.,  of,  &c.,  representing  that  he  is 
the  owner  of  certain  real  estate  situate  in  S.,  in  said  county 

of  ,  bounded  {here  describe  the  land),  and  that  he  is 

desirous  of  conveying  the  same,  a'nd  that  H.  B.,  liis  wife,  is 
an  insane  person,  and  is  therefore  incompetent  to  release  her 
right  of  dower  {or,  right  of  homestead)  in  said  real  estate, 
and  praying  that  C.  D.,  guardian  of  said  II.  B.,  may  be 
authorized  to  release  her  said  riglits  in  said  land  ;  and  the 
said  11.  B.  having  been  notified  according  to  law  to  a])pear 
and  show  cause  why  the  prayer  of  said  A.  B.  should  not  be 


362  APPENDIX. 

granted,  clo^-s  not  nppenr  to  object  thereto  ;  and  after  a  hear- 
ing thereon,  tlie  court  being  satisfied  that  said  right  of  dower 
(or,  right  of  homestead)  ought  to  be  released  ;  it  is  decreed 
that  said  C.  D.,  guardian  of  said  11.  B.,  be,  and  he  is  hereby, 
authorized  to  make  said  release  by  joining  in  any  deed  of 
conveyance  made  by  said  A.  B.,  or  any  trustee  for  him, 
witliin  five  years  next  after  tlie  j)assing  of  tliis  decree, 
whether  such  deed  pass  the  whole  or  only  separate  parcels 
or  lots  of  said  real  estate  {if  the  court  deems  it  proper  that 
a  portion  of  the  proceeds  of  the  land  should  he  reserved  for 
the  use  of  the  wife,  add),  the  said  A.  B.  first  paying  over  to 

said  C.  D.  the  sum  of dollars,  to  be  invested  and  held 

by  said  guardian  for  the  l)enefit  of  the  said  II.  B.,  if  she 
survives  said  A.  B.,  the  income  of  said  sura  to  be  received 
and  enjoyed  by  said  A.  B.,  during  the  life  of  said  II.  B.,  or 
until  otherwise  ordered  by  the  court,  and  the  principal  to  be 
paid  over  to  said  A.  B.,  if  he  survives  the  said  H.  B. 

J.  S.,  Judge  of  Probate  Court. 


[No.  91.] 

Petition  for  sale  of  Standing  Wood  on  Land  held  in 

Dower. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and 
for  the  county  of . 

Respectfully  represents  A.B.,  widow  of  C.  D.,  late  of  W., 
in  said  county,  deceased,  that  dower  has  been  duly  assigned 

to  her  out  of  the  real  estate  of  said  deceased,  situate  in , 

in  the  county  of ;  that  said  assignment  of  dower  includes 

acres  of  woodland,  more  or  less,  bounded  and  de- 
scribed as  follows :  {here  describe  the  land  assigned  in 
doxoer)  ;  and  said  A.  B.  further  represents  that  the  wood 
and  timber  standing  on  said  land  so  held  by  her  in  dower 
has  ceased  to  improve  by  growth  {or  state  other  i-easons  as 
the  facts  require),  and  ought  to  be  cut ;  wherefore  she  prays 

that  E.  F.,  of ,  in   the   county  of   ,  or   some  other 

suitable  person,  may  be  appointed  a  trustee,  and  that  he  be 


APPENDIX.  363 

authorized  and  empowered  to  sell  and  convey  said  wood  and 
timber,  in  the  way  and  manner  provided  by  law  for  the  sale 
of  real  estate  by  guardians,  to  be  cut  and  carried  away  within 
the  time  limited  in  the  order  of  sale,  and  to  hold  and.  invest 
the  proceeds  thereof,  after  paying  the  expenses  of  such  sale 
therefrom,  and  pay  over  the  income,  above  the  taxes  and. 
other  expenses  of  said  trust,  to  the  person  entitled  to  such 
dower  or  right  to  the  use  and  improvement  thereof,  while 
the  same  continues,  and  at  the  expiration  of  such  dower  pay 
the  principal  sum  to  the  owner  of  such  land. 

Dated  this day  of ,  A.  D.  18—. 

A.  B. 


[No.  92.] 

Decree  on  the  foregoing  Petition. 

At  a  probate  court  holden,  &c. 

On  the  petition  of  A.  B.,  widow  of  C.  D.,  late  of  W,,  in 
said  county,  deceased,  praying  that  a  trustee  may  be  ap- 
pointed, and  that  he  be  authorized  and  empowered  to  sell 
and  convey  certain  wood  and  timber  standing  on  land  held 
by  her  in  dower  and  described  in  said  petition,  in  the  way 
and  manner  prescribed  by  law  for  the  sale  of  real  estate  by 
guardians ;  all  persons  interested  having  been  duly  notified, 
and  no  person  objecting  thereto,  and  it  appearing  that  said 
wood  and  timber  has  ceased  to  improve  by  growth  and 
ought  to  be  cut. 

It  is  ordered  that  E.  F.,  of ,  in  the  county  of , 

be  appointed  trustee,  he  first  giving  bond  with  sufiicient 
sureties  for  the  due  performance  of  the  trust  herein  set 
fortli ;  and  that  he  be  authoiized  and  empowered  to  sell  and 
convey  said  wood  and  timber,  in  the  way  and  manner  pro- 
vided by  law  for  the  sale  of  real  estate  by  guardians,  to  be 

cut  and  carried  away  within months  from  the  date  of 

sale. 

And  said  trustee  is  to  hold  and  to  invest  the  jn-oceeds 
thereof,  after  paying  the   ex])enses  of  such  sale  tlicrefi'om, 

in  , ,  and  not  otherwise,  and  pay  over  the  iiicon)e, 

above  the  taxes  and  other  expenses  of  said  trust,  to  the  per- 


364  APPENDIX. 

son  eotitled  to  such  dower  or  right  to  the  use  and  improve- 
ment tliereof,  while  the  same  continues,  and  at  the  expiration 
of  such  dower  pay  the  princii)al  sum  to  the  owner  of  said 
land. 

And  said  trustee  is  to  report  his  doings  in  the  premises 

and  an  account  of  such  sale  to  this  court  within from 

the  date  of  tlie  sale. 

J.  S.,  Judge  of  Probate  Court. 


[No.  93.] 
Condition  of  the  Trustees'  Bond. 

The  condition  of  this  obligation  is  such,  that  if  the  above- 
bounden  E.  F.,  trustee  duly  appointed  by  the  probate 
court   upon    the   petition    of   A.   B.,  widow. of  C.  D.,  late 

of ,  in  said  county  of ,  deceased,  to  sell  and  convey 

certain  wood  and  timber  standing  on  land  held  in  dower  by 
said  A.  B.,  shall, 

1st.  Sell  and  convey  said  wood  and  timber  in  accordance 
with  the  license  therefor  ; 

2d.  Dispose  of  and  manage  the  proceeds  of  the  sale,  and 
faithfully  discharge  his  trust  in  relation  thereto,  according 
to  law  and  the  decree  of  said  court ; 

3d.  Render  an  account,  on  oath,  of  the  property  in  his 
hands,  and  of  the  management  and  disposition  thereof, 
within  one  year  from  the  date  of  the  sale,  and  at  any  other 
thne  when  required  by  said  court ;  and 

4th.  At  the  expiration  of  his  trust,  settle  his  accounts 
with  said  court,  and  pay  over  and  deliver  all  the  estate  and 
effects  remaining  in  his  hands,  or  due  from  him  on  such  set- 
tlement, to  the  person  or  jiersons  entitled  thereto,  according 
to  law  and  the  decree  of  said  court,  then  this  obligation  to 
be  void,  otherwise  to  remain  in  full  force  and  virtue. 

E.  F.  (seal.) 

Signed,  sealed  and  delivered  in  presence  of  G.  H.   (seal.) 

S.   T.  I.     J.  (seal.) 

M.  R. 


INDEX. 


(See  separate  Index  to  Porms  of  Petitions,  &c.,  post.) 
A. 

ABSENT    HEIR,  I'age 

presumption  of  death  of 232 

no  presumption  of  marriage  of,  or  issue 233 

ACCOUNTS, 

to  be  rendered  by  executors,  &c.,  in  one  year  after  giving  bond 

and  from  time  to  time,  &c 194 

by  public  administrators,  when 194 

by  special  administrators,  whenever  required  by 

court 194 

by  guardians,  within  one  year,  and  once  in  three 

years  tliereafter,  and  when  court  directs      .  194 
by  trustees,  within  one  year,   and  when  court 

directs 195 

executor,  &c.,  failing  to  render,  may  be  cited 196 

citation  to  render  may  issue,  though  executor,  &c.,  has  settled 

with  parties  and  taken  their  receipts 195 

citation  to  render,  how  issued 196 

how  to  be  stated 196 

second  and  additional,  how  to  be  stated .  211 

when  presented,  notice  to  be  given,  unless  parties  interested 

assent 216 

who  entitled  to  notice 216 

person  presenting  may  be  interrogated 217 

allowance  of,  conclusive,  unless  appealed  from 217 

settled,  when  may  be  opened  on  application  of  person  interested  218 

to  correct  error 218 

when  one  of  two  joint  executors  or  administrators  dies,  &c.,  to 

be  rendered  by  the  other 195 

when  sole  executor,  &c.,  dies,  by  whom  to  be  rendered     .     .     .  195 

of  joint  executors,  &c.,  may  be  allowed  on  oath  of  one  .     .     .  218 

to  he  sworn  to 218 

separate,  to  be  rendered  by  guardian  of  several  wards  jointly 

interested 216 


366  INDEX. 

ACCOUNTS  (covtinwd).  Page 
executors  and  (idmiiiisti-ators  chargeable 

with  tlie  value  of  the  personal  estate  as  inventoried    .     .     .  197 

gain  on  sale  of  personal  estate 198 

value  of  personal  estate  not  inventoried 198 

proceeds  of  real  estate  sold 198 

all  interest,  profit,  and  income  of  personal  estate       198,  199 

value  of  property  lost  through  negligence       ....  199 

wlien  chargeable  with  interest  on  funds  in  their  hands  .     .  201 

compound  interest 5^02 

rents  of  real  estate 202 

chargeable  with  debts  due  from  tliemselves 203 

when  executor  chargeable  with  trust  funds  ....      200,  214 

allowed  for  debts  paid 204 

wlien  for  assessments,  &c.,  paid 204 

as  to  claims  barred  by  statute  of  limitations  ....  205 

for  what  claims,  when  estate  is  insolvent 205 

as  to  funeral  expenses 206 

expenses  of  last  sickness  of  deceased 206 

charges  of  administration  and  services    ....  206 

for  loss  on  sale  of  personal  estate 209 

allowances  made  by  court  to  widow  or  children    .  209 

how  allowed  for  debts  due  themselves 209 

interest  on  such  debts 210 

guardians  and  trustees  charqcalile 

with  value  of  personal  estate  as  inventoried 212 

gain  on  sale  of  personal  estate 212 

all  income  of  real  estate 212 

all  interest  accruing  from  trust  fund 212 

loss  of  interest  arising  from  neglect  to  invest      .     .     .  212 

losses  from  improper  investments 212 

witli  compound  interest,  when       21o 

allowed  for  expense  of  ward's  support  and  education,  when  214 

interest  on  a<lvanees,  when            215 

expenses  of  guardianship  and  services 215 

trustees  alloired  for  expenses  of  trust  and  services 215 

when  allowed  as  final  discharge  of  executors,  &c 238 

to  be  made  by  executors  although  they  were  not  legally  ap- 
pointed        71 

ADMINISTRATION, 

to  wliom  granted,  and  in  what  order 76 

not  granted  to  minors 81 

original,  not  granted  after  twenty  years       75 

except  when  property  accrues,  or  first  becomes  known, 

after  that  period 75 

or  when  necessary   to    distribute    dividends  of   insolvent 

estate 75,  note 

revoked  on  proof  of  will 116 


INDEX.  367 

ADMINISTRATION  (contiiuied).  Page 

jurisdiction  of  probate  court  in  granting 6,  76 

court  having  jurisdiction,  first  taking  cognizance  of,  to  retain 

jurisdiction  throughout 7 

first  granted,  to  extend  to  all  estate  of  deceased  in  State  ...  7 

when  to  be  granted  to  public  administrator 82 

de  bonis  non,  when  granted 73 

to  whom  granted 83 

with  will  annexed,  when  granted 73 

to  whom  granted 83 

de  bonis  non,  icith  will  annexed,  vihen  gr&ntQA. 74 

to  whom  granted 83 

specidl  may  be  appointed  at  any  time 74 

ancillary 74 

otlier  than  original  may  be  granted  after  twenty  years     ...  75 

expenses  of,  allowed  to  administrator  in  his  account    ....  206 
ADMINISTRATORS, 

who  entitled  to  be,  and  in  what  order 76-81 

widow  and  next  of  kin 76-80 

husband 82 

creditors 81 

public  administrator        82 

who  are  suitable  to  be 80 

minor  cannot  he 81 

register  of  probate  cannot  be,  in  his  county 14 

citizen  of  another  State  may  be 81 

to  give  bond,  approved  by  judge 87 

when  exempted  from  giving  bond  for  proceeds  of  sale  of  real 

estate 89 

when  may  be  required  to  give  new  bond 281 

may  be  removed,  for  failure  to  give  new  bond  when  required  11.3,281 

for  insanity 113 

evident  unsuitability 113 

maladministration 115 

letters  to,  revoked,  if  will  is  afterwards  proved 116 

may  resign  by  leave  of  court 116 

lawful  acts  of,  remain  valid,  though  removed 116 

to  return  inventory 118 

may  sell  personal  estate 130 

may  adjust  claims  by  compromise  or  arbitration,  under  author- 
ity of  court 133 

to  give  notice  of  appointment  within  three  months       .     .     .     .  135 

to  make  affidavit  that  notite  of  appointment  was  given    .     .     .  135 

proceedings  when  notice  was  not  given 136 

illegal  acts  of,  how  may  be  ratified 71 

temporary  investments  by 134 

actions  against,  limited  to  two  years 137 

except  when  they  receive  new  assets,  &c 137 


368 


INDEX. 


ADMINISTRATORS  {mnlmw,!).  Pago 

or  when  nction  fails  from  formal  dc-fect 137 

liable  to  actions  for  two  years,  tlioii^li  estate  lias  been  distrib- 
uted to  heirs 14;],  note 

not  liable  to  actions  within  a  vcar,  except 140,  142 

when  may  jiay  debts  without  liability 140,  143 

may  be  liccnseil  to  sell  lands  for  payment  of  debts  and  charges 

to  mortgage  lands 188 

to  convey  lands,  according  to  agreement  of  intestate,  under  order 

of  court 187 

may  sell  vested,  contingent,  &c.,  interests  in  real  or  personal 

estate  when  authorizeil 188 

when  to  render  accounts  (see  Accuunls) 194 

compensation  of 206 

bound  to  distribute  intestate's  estate  as  ordered  by  court     .     .  231 

how  to  perpetuate  evidence  of  distribution 238 

bond  of,  may  be  put  in  suit  (see  Boiuls) 231 

of  {moliHiit  (ultitcs,  when  to  represent  estate  insolvent    ....  142 
failing  to  represent  insolvency  of  estate,  may  be  liable  per- 
sonally     144 

how  may  pay  preferred  debts  witliout  liability      ....  145 
to  oppose  allowance  of  unjust  claims  presented  to  commis- 
sioners      150 

may  appeal  from  decision  of  commissioners 153 

when  appeal  may  be  waived  and  claim  submitted  to  arbi- 
tration      155 

failing  to  settle  their  accounts  in  six  months  after  commis- 
sioner's return,  liable  to  be  removed,  and  for  damages  157 

how  to  make  distribution 158 

how  may  perpetuate  evidence  of  distribution 158 

with  icill  annexed,  when  to  be  appointed 73 

bond  of 70,  87 

de  bonis  non,  when  may  be  appointed 73,  74 

bond  of 87 

who  entitled  to  be 83 

to  give  notice  of  appointment 136 

failing  to  give  notice,  not  to  have  benefit  of  statute  of  limi- 
tations      138 

to  be  further  liable,  if  new  assets  are  received 138 

ADMISSION, 

of  assets,  by  executor  who  is  residuary  legatee  and  gives  bond 

to  pay  debts,  «Scc.,  conclusive 69,  145 

ADOPTIOX   OF   CHILDREN, 

by  order  of  probate  court 206 

any  person  may  petition  for,  in  county  of  his  residence    .     .     .  296 
if  not  an  inhabitant  of  the  State,  to  petition  in  county  where 

child  resides 300 

husband  or  wife  of  petitioner  to  join  in  petition 295 


INDEX.  369 

ADOPTION   OF   CHILDREN  (confhiued).  Page 

child,  if  above  the  age  of  fourteen  to  consent  in  writing  .     .     .  296 

what  other  parties  to  consent  in  writing 296,  297 

when  consent  of  otiier  parties  not  necessary 297 

agent  of  board  of  state  cliarities  to  be  notified  if  cliild  is  a 

pauper    .     .  ■ 297 

when  notice  of  petition  to  be  given,  and  how 298 

persons  not  olijeeting,  after  notice  held  to  have  consented     .     .  298 

if  no  one  consents  or  appears  guardian  ad  litem  may  be  appointed  298 

legal  consequences  of 298,  299 

as  to  inheritance  of  property 299,  300 

restrictions  upon 300 

child's  name  may  be  changed 298 

persons  aggrieved  may  appeal 300 

effect  of  a  second  adoption 301 

ADVANCEMENTS, 

may  be  made  of  real  or  personal  estate 234 

to  any  chihl  or  lineal  descendant 234 

considered  in  division  among  heirs  as  part  of  share      ....  234 

not  to  be  refunded,  though  exceeding  share 234 

interest  not  computed  on 234 

questions  concerning,  liow  determined 235 

how  to  be  proved 235 

value  of,  how  estimated 236 

how  to  be  computed 237 

AFFIDAVIT, 

to  be  made  by  executor,  &c.,  that  notice  of  appointment  was 

given 136 

effect  of 136 

to  be  made  by  executor,  &c.,  that  notice  of  time  and  place  of 

selling  land  was  given 175 

effect  of 175 

AGREEMENT, 

written,  for  conveyance  of  land,  specific  performance  of  .     .     .  187 

ALLOWANCE, 

to  widows,  for  necessaries,  may  be  made  by  court 124 

to  minor  children,  if  there  is  no  widow 124 

may  be  whenever  there  is  personal  estate,  whether  deceased 

left  will  or  not 125 

amount  of 125 

facts  to  be  considered  in  making 125 

to  be  maile  from  personal  estate  only 127 

not  to  be  made  from  proceeds  of  sale  of  real  estate 127 

proceedings  on  ap|)lication  for 127 

appeal  from  decree;  making,  stays  proceedings 127 

death  of  widow,  while  appeal  is  pending,  effect  of 128 

to  willow  or  minor  children,  from  income  of  estate  in  hands  of 

a  sperial  administrator 127 

24 


870  INDEX. 

ALLOWANCE  {rontlmied).  Tago 
may  be  paid,  altliou<jh  decree  is  appealed  frdiii,  if  petitioner 

gives  bond,  &.c 127 

to  wives  oC  insane  persons  under  guardiansliip 128 

not  limited  to  necessaries 129 

ANCILLARY  ADMINISTRATION, 

when  granted 74 

may  be   granted,  altbongh  no  administration   in  place  of  de- 
ceased's domicile 75 

or  althougii   will  of  deceased  not  proved  in  place  of  his 

domicile 75 

creditors  here,  to  be  first  paid  from  estate 162 

if  estate  is  insolvent,  to  have  just  proportion 162 

balance  of  estate,  how  disposed  of 163 

APPEAL, 

from  jirohate  court  to  supreme  judicial  court  may  be  by  any  person 

"  aggrieved  " 290 

to  be  claimed  and  notice  given  at  probate  office,  within  thirty 

days .202 

to  be  entered  at  rule  day  of  supreme  court  next  after  fifty 

days 292 

reasons  of,  to  be  filed  by  appellant  in  probate  office,  and  served 

on  adverse  party  fourteen  days  before  entry  ....  292 

appellant  not  required  to  recognize  or  give  bond 293 

omitted,  may  be  entered  on  petition  and  leave 293 

proceedings  in  such  case 293 

stays  proceedings  under  order  appealed  from 294 

except  as  to  appointments  of  special  administrators,  and 

certain  allowances  to  widows  and  children      .     .     .    89,  128 

may  be  waived,  and  proceedings  had  in  probate  court      .     .     .  294 

to  be  entered  on  docket  with  cases  in  equity 294 

may  be  tried  by  jury 295 

if  not  entered,  decree  appealed  from  may  be  affirmed  on  com- 
plaint        295 

Jrom  cowniisxioners  of  ivsolcent  estates,  may  be  by  creditor  or  ex- 
ecutor       153 

when  taken  to  the  supreme  judicial  court 153 

superior  court 153 

notice  of,  to  be  given  at  probate  office  and  to  creditor .     .     .     .  153 

when  to  be  entered 153 

proceedings  on 154 

party  prevailing  entitled  to  costs 154 

not  seasonably  taken,  how  may  be  allowed 154 

effect  of,  as  to  distribution  among  creditors 154 

may  be  waived  and  claim  submitted  to  arbitrators 155 

APPKAISEMENT  of  estates.     (Hee  Inrentory.) 
ARBITRATION. 

of  demands  generally,  court  may  authorize 133 


INDEX.  371 

ARBITRATION  (contmued).  Page 
of  claims  presented  to  commissioners  of  insolvent  estates,  when 

appeal  has  been  taken  and  waived 155 

proceedings  on 155 

of  claim  of  executor  or  administrator  against  deceased    .     .    .  209 

proceedings  on 209 

ASSISTANT  REGISTER  OF  PROBATE, 

to  be  appointed  in  certain  counties 14 

to  take  oatlis  prescribed  by  the  constitution 14 

to  give  bond 14 

to  perform  duties  under  direction  of  register 15 

in  case  of  absence,  neglect,  &c.,  of  register,  may  complete  records 

and  act  as  register 15 

ATTESTATION  CLAUSE, 

of  will 24 

ATTESTING  WITNESSES, 

number  necessary  to  subscribe  will 17 

to  subscribe  in  testator's  presence 22 

presence  of  testator,  what  is 22 

presumptions  as  to  attestation  of 23 

need  not  subscribe  in  presence  of  each  other 24 

may  subscribe  by  "  mark  " 24 

must  be  competent  at  time  of  attesting 27 

subsequent  incompetency  of,  not  to  prevent  probate    ....  27 
may  be  incompetent  bj-  reason  of  interest,  crime,  or  deficiency 

of  understanding 25 

what  crimes  disqualify 5l6 

competency  of,  restored  by  pardon 27 

not  restored  by  remission  of  sentence 27 

devise  to,  void,  unless,  &c 25 

may  give  their  opinions  as  to  testator's  sanity 31 

attestation  of,  not  evidence  that  witness  believed  testator  to  be 

sane 33 

declaration  of  deceased 33,  note 

testimony  of  one,  when  sufficient  to  prove  will 51 

when  all  must  appear  to  testify 62 

how  summoned 52 

diligence  required  when  searching  for  absent 62 

liandwriting  of,  when  may  be  proved 63 

marks  of,  how  proved 53 

failure  of  recollection  of 63 

may  be  contradicted 54 

B. 

BONDS, 

given  to  probate  courts 279 

sureties  in,  to  be  inhabitants  of  this  State 279 


372  INDEX. 

BONDS  (continued).  Pago 

not  sufficient,  unless  approved  by  judge  in  writing: 279 

given  by  joint  executors,  &c.,  may  be  separate  or  joint    .     .     .  279 

to  be  made  payable  to  the  judge  and  his  successors      ....  280 

suggestions  as  to  contents  of 280 

when  new,  may  be  required 281 

surety  in,  may  be  discharged  on  petition 281 

liable  for  breaches  before  new  bond  is  approved    ....  282 

may  be  ])ut  in  suit  in  name  of  judge 282 

by  judgment  creditor 282 

by  creditor  of  insolvent  estate,  after  decree  of  distribution  .  282 

by  heir,  after  decree  of  distribution 282 

by  any  person  aggrieved,  by  leave  of  court ....       283,  287 

at  any  time  within  twenty  years  after  breach 285 

proceedings  on  application  for  leave  to  sue 285 

appeal  lies  on  refusal  of  application 280 

when  judge  is  obligor  in  bond  given  to  former  judge,  reg- 
ister may  authorize  suit 286 

suit  to  be  brought  in  supreme  judicial  court 286 

writ,  how  to  be  indorsed 286 

indorsers  liable  for  costs 286 

judgment  and  execution,  how  rendered  and  awarded     .     .  286 

to  whom  money  recovered  to  be  paid 287 

scire  facius  may  issue  on  original  judgment  for  damages  for 

new  breach 287 

actions  against  sureties  in  guardian's  bond  limited  to  four 

years  from  guardian's  discharge 288 

BROTHERS, 

when  entitled  to  administer  as  next  of  kin 78 

when  to  inherit 221 


c. 

CHANGE  OF  NAIVIE, 

may  be  ordered  by  probate  court 301 

not  made  unless  for  reasons  consistent  with  public  interest  and 

satisfactory  to  court 301 

petition  to  be  in  county  where  party  resides 301 

when  notice  of  petition  to  be  given 301 

of  child,  may  be  made  on  petition  for  his  adoption 302 

when  decreed,  public  notice  to  be  given 302 

certificate  to  issue  on  proof  of  such  notice 302 

judge  to  make  annua!  return  of  changes  of  name 302 

CHILDREN, 

when  entitled  to  administer  as  next  of  kin 78 

when  entitled  to  allowance  from  personal  estate  of  deceased 

parent 124 

minor,  entitled  to  articles  of  apparel  and  ornament      ....  124 


INDEX.  373 

CHILDREN  (continued).  Page 

inherit  parent's  estate 221,  229 

when  take  estate  by  right  of  representation    .......  224 

share  in  parent's  estate  of,  dying  under  age,  and  unmarried, 

descends,  &c 223 

deceased,  issue  of,  inherit  by  right  of  representation    ....  224 

posthumous,  inherit  as  if  born  in  parent's  lifetime 226 

not  provided  for  by  father's  will,  to  share,  &c 228 

devisees  and  legatees  to  contribute  to  sliare  of 228 

omitted  in  parent's  will,  to  share  in  estate  imless  omission  was 

intentional 226 

parol  evidence  of  testator's  intent  admissible  in  such  cases  .     .  227 

how  to  share  in  parent's  personal  estate 228 

advancements  to,  deemed  in  division  of  estates  as  part  of  share  234 

not  to  be  refunded,  though  it  exceeds  share 234 

interest  not  computed  on 234 

questions  as  to,  how  determined 235 

how  to  be  proved 235 

merged  by  subsequent  will 236 

value  of,  how  ascertained 236 

illegitimate,  heirs  of  mother  and  maternal  ancestor      ....  223 

estate  of,  descends  to  mother 224 

deemed  legitimate,  if  parents  have  intermarried  and  ac- 
knowledge       224 

omitted  in  parent's  will  not  to  share  in  his  estate  ....  228 
how  may  be  adopted     (See  Adoption  of  Children.) 
CITATIONS, 

may  be  issued  by  register  of  probate  on  any  day 8 

service  of 51 

CODICIL, 

included  in  the  term  "  will  " 27 

how  to  be  executed 27 

may  give  effect  to  unattested  will 28 

will  executed  bj'  person  under  age,  &c 28 

effect  of,  by  republication 28 

may  revoke  will 45 

may  not  be  revoked,  though  will  is 45 

COMMISSIONERS, 

to  examine  claims  against  insolvent  estates  {see Insolvent  Estates)  142 

make  partition  (see  Partition) 244 

assign  dower  (see  Dower) 257 

may  be  appointed  to  determine  amount  of  income  of  real  estate 

received  by  executor,  &c 202,  note 

"COMPETENT  WITNESSES."     {See  Attesting  Witnesses.) 
COMPLALVT, 

against  person  concealing  will G5 

embezzling  estate  of  deceased  person  or  ward 122 

for  non-entry  of  appeal 242 


374  INDEX. 

COMPROMISE,  Page 

of  claims,  court  may  authorize  executors,  &c 1-^3 

proceedings  for 133 

CONCEALJMENT, 

of  will,  proceedings  for  discovery 65 

fraudulent,  of  estate  of  deceased  person  or  ward,  proceedings 

for  discovery 122 

CONTINGENT   RIGHTS, 

in  real  or  personal  estate,  may  be  sold  by  executors,  &c.,  by 

order  of  court 188 

notice  given  of  petition  as  in  cases  of  sale  of  lands 188 

CONTRACT, 

in  writing,  for  sale  of  land,  specific  performance  of     ....  187 
COSTS, 

may  be  awarded  in  contested  cases  in  discretion  of  court     .     .  9 

general  rule  as  to  allowance  of 9,  note 

of  suit,  paid  by  executor,  &c.,  allowed  in  his  account,  unless     .  208 
CREDITOR, 

may  be  attesting  witness 25 

when  entitled  to  administer 81 

may  complain  in  cases  of  embezzlement,  &c.,  of  estate  of  de- 
ceased person  or  ward 122 

may  be  witness  in  support  of  petition  to  sell  lands  to  pay  debts  170 
not  to  bring  actions  against  executor,  &c.,  after  two  years, 

except 137 

whose  right  of  action  accrues  after  two  years,  how  may  proceed  139 
not  to  bring  action  against  executor,  &c.,  within  one  year, 

except 140,142 

wlien  mav  proceed  against  heirs,  legatees,  &c.,  of  deceased  per- 
son      ' 140 

when  may  appeal  from  decree  of  probate  court  ....    291,  note 
of  insolvent  cstati^s, 

who  are  preferred 142 

when  required  to  refund  money  paid  by  executor,  &c.,      .     144,  note 

to  prove  claim  before  commissioners 146 

allowed  six  months  to  prove  claim 146 

and  further  time  by  leave  of  court 146 

of  deceased  coi)artner  may  prove  claim 149 

whose  claim  is  not  matured  may  prove  it 148 

if  secured,  must  waive  security  or  prove  only  balance  of  claim  149 

having  contingent  claim,  how  may  proceed 151 

may  appeal  from  connnissioners 153 

remedy  of,  when  appeal  not  taken  in  time 154 

may  submit  claim  to  arbitration,  if  appeal  is  waived    ....  155 

not  to  bring  actions  after  representation  of  insolvency,  except.  15y 
claim  of,  if  not  presented  to  commissioners,  barred,  unless  there 

are  new  assets 160 

may  cause  commission  to  be  re-opened  when  there  are  new 

assets 160 


INDEX.  375 

CREDITOR  {continued).  Page 

claim  of,  not  barred  by  lapse  of  time,  when  there  are  new  assets  160 
may  sue  after  eighteen  months,  if  question  of  insolvency  is  not 

then  determined 161 

if  assets  are  sufficient,  to  be  paid  in  full 160 

otherwise  to  be  paid  ratably 161 

preferred,  paid  in  full 157 

unclaimed  dividends,  when  divided  among 158 

of  deceased  foreigners,  claims  how  paid 162 

CURTESY, 

tenant  by,  right  of,  not  affected  by  statute  of  descent      .     .     .  222 

D. 

DEATH, 

of  absent  person  presumed  after  seven  years 86,  232 

of  several  persons,  by  same  calamity,  presumed  to  be  simul- 
taneous    233 

DEBTS,  &c., 

outstanding,  when  may  be  sold  by  executors,  &c 131 

proceedings  in  sucli  case 131 

DECLARATIONS   OF   TESTATOR, 

when  admissible  in  evidence  as  to  execution  of  will     ....  33 

to  show  his  mental  condition 38 

as  to  manner  of  disposing  of  estate 38 

not  admissible  to  prove  intoxication  at  time  of  executing  will  .  37 

or  that  undue  influence  was  used 41 

as  to  revocation  of  will 43 

DECREES  OF  PROBATE  COURT, 

to  be  in  writing  and  recorded 8 

having  jurisdiction,  conclusive,  unless  appealed  from  ....  5 

DESCENT    OF   REAL    ESTATE,  under  statute  of  187Q, 

what  real  estate  descends 220 

to  children,  and  issue  of  deceased  children 221 

when  to  fatlier 221 

when  to  mother 221 

when  to  brothers  and  sisters 221 

when  to  other  kindred 221 

when  to  widow 222 

to  husband 222 

esciieat  to  commonwealth 222 

under  Gen.  Sts.  r.  91 note,  222 

illegitimate  child  heir  of  mother  and  maternal  ancestor    .     .     .  223 

estate  of  illegitimate  descends  to  mother 224 

does  not  aflect  tenant  by  the  curtesy 222 

"  right  of  rei)resentatii)n  " 224 

who  are  next  of  kin 225 

postlmmoiis  (■hijdren  inherit 226,  228 

children  omitted  in  will  inherit 226 


376  INDEX. 

DEVISE,  Page 

to  attesting:  witness  void,  unless  there  are  three  other  competent 

witnesses 25 

DEVISEES, 

to  contribute  to  slinre  of  postlimnous  child,  or  child  omitted  in 

parent's  will  unless 228 

DISCOVERY, 

proceeihnjis  for,  in  case  of  concealment  of  will 65 

embt'zzlenient,  &c.,  of  property  of  deceased   persons  and 

wards 122 

DISTRIBUTION,   Of  intestate  estates, 

to  children  and  lineal  descendants 220,  229 

posthumous  children       22*),  220 

children  omitted  in  parent's  will 226,  229 

father 221,229 

when  to  mother 221,  229 

when  to  brothers  and  sisters 221,229 

when  to  other  kindred  .     .  221,  229 

who  entitled  to,  as  next  of  kin 225 

when  widow  takes  one-third  after  debts,  &c.,  paid 229 

share  of  widow,  when  husband  dies  without  issue 230 

who  waives  provision  in  husband's  will 229,  note 

decree  of,  when  necessary 230 

to  desi^rnate  heirs  by  name,  and  fix  share  of  each      .     .     .     231 

not  to  regard  assignments  by  heir 232,  note 

when  to  be  made 233 

how  made,  where  there  liave  been  advancements 237 

money  not  claimeil  by  heir  to  be  deposited  in  savings-bank       .     238 

so  deposited,  how  paid  to  person  entitled 239 

evidence  of,  liow  perpetuated 239 

Of  insolreni  fsttites, 

decreed  thirty  days  after  commissioners'  return 156 

effect  upon,  of  appeal 16G 

further  to  lie  made,  if  whole  assets  are  not  distributed  by  first  .     lotj 

separate,  of  ))artnership  and  individual  estate 157 

unclaimed  dividends  to  be  deposited  in  savings-bank  ....     158 

how  distributed      .     .     , 158 

dividends  deposited,  how  paid  to  person  entitled 239 

evidence  of,  how  perpetuated 238 

of  insolvent  estates  of  deceased  foreigners 162 

creditors,  entitled  to  proportionate  share  of  entire  estate     .     162 

balance,  how  disposed  of 1C3 

DOWER, 

may  be  assigned  by  probate  court,  when  husband  died  seised 

of  lands,  and  heirs  or  devisees  do  not  object  ....     257 
may  be  assigned  by  heirs,  without  order  of  court  .     .     .     257,  note 

may  be  assigned  by  guardian  in  ward's  land 258,  note 

when  estate  of  dower  exists 258 


INDEX.  377 

DOWER  (continued).  Page 
if  heirs  do  not  object,  widow  may  occupy  land  jointly  with 

them,  without  assignment 258,  note 

barred  by  divorce  for  wife's  adultery 259 

not  barred  by  divorce  from  bed  and  board 259 

not  assigned  in  wild  lands 259 

in  lands  owned  by  Inisband  as  tenant  in  common 260 

not  in  lands  lielJ  for  partnership  purposes 260 

in  mortgaged  lands,  when 261 

in  leased  lands  when 262 

widow  may  waive  provision  in  husband's  will,  and  take  .     .     .  262 
not  to  take  unless  such  provision  is  waived,  or  unless  it 
appears  by  tli«  will  that  husband  intended  she  should 

have  both 263 

to  file  waiver  in  probate  oflSce,  within  six  months       .     .     .  26-4 

barred  by  jointure  settled  by  wife's  assent,  before  marriage      .  264 

by  pecuniary  provision  in  lieu/)f,  by  wife's  assent     .     .     .  26-1 
by  jointure,  &c.,  without  assent,  or  made  after  marriage 

unless  waived,  &c 265 

must  be  claimed  within  twenty  years  from  husband's  death, 

except 265 

proceedings  for  assignment  to  be  by  petition 265 

if  land    was   owned   in   common,  notice  to  be   given   to  co- 
tenant    266 

commissioners  to  be  appointed  to  assign 266 

person  employed  in  probate  office  not  to  be  in  his  county, 

unless 10, 14 

to  be  sworn 267 

warrant  to,  may  be  revoked 9 

to  first  make  partition,  if  land  was  owned  in  common  267 

to  be  80  assigned  that  widow  sliall  have  one-third  of  income    .  267 

how  to  be  assigned  when  estate  is  not  divisible 268 

return  of  commissioners,  what  to  contain 269 

assignment,  confirmed  by  court 269 

where  to  be  recorded 269 

tenant  in,  evicted  or  deprived  of  jointure,  &c.,  may  be  endowed 

anew 269 

right  of  insane  married  woman  to,  in  husband's  lands  may  be 

released  l)v  guarilian  by  leave  of  court 275 

in  such  case,  husband  to  petition 276 

notice  and  hearing  on  petition 276 

guardian  may  be  required  to  hold  one-tiiird  of  proceeds  of 

sale  for  benefit  of  wife,  for  her  life,  &c 276 

trustee  of  husband  may  convey  land  free  of  dower,  when 
provision  has  been  made  for  wife  and  conrt  au- 
thorizes      277 

guardian  authorized  to  release  in  like  case 277 

proceedings  to  be  in  county  where  husband  resiiles,  11   an 


378  INDEX. 

DOWER  (contmucd).  Pago 

inhabitant  of  State 277 

otherwise,  in  county  where  land  lies 278 

certified  copy  of  all  final  decrees  or  orders  to  be  recorded 

in  registry  of  deeds 278 

estate  in  lieu  of,  wiien  husband  dies  intestate,  and  without  issue  273 

widow  entitled,  in  such  case,  to  half  of  lands  for  life      .     .  273 

and  may  use,  clear,  &c.,  wild  lands 273 

if  she  chooses  dower,  must  file  her  election  in  probate 

office  within  six  months 273 

present  worth  of  estates  in 272 

E. 

EMBEZZLEMENT, 

of  estates  of  deceased  persons,  or  wards 122 

proceedings  for  discovery 122 

EQUITY, 

jurisdiction  of  probate  court  in  relation  to  trusts  created  by  will  111 
ESTATE  IN  LIEU  OF  DOWER, 

when  husband  dies  intestate  and  without  issue 273 

widow  entitled  to  half  of  lands  of  life 273 

and  may  use,  clear,  &c.,  wild  lands 273 

if  widow  elects  to  take  dower,  must  file  election  in  probate 

olfice  within  six  months 273 

ESTATE  BY  THE  CURTESY, 

not  affected  by  the  statute  of  descents 222 

EVIDENCE, 

on  question  of  sanity  of  testator 29-38 

declarations  of  testator,  how  far  admissible  .      33,  37,  38,  41,  43 

of  handwriting  of  attesting  witness,  when  admissible     .     .  53 

of  "  mark  " 24,  53 

parol,  admissible,  that  testator  intentionally  omitted  to  pro- 
vide for  child     227 

perpetuation  of,  that  executor,  &c.,  gave  notice  of  appointment  136 

notice  of  time  and  place  of  sale  of  lands 175 

of  ])ayments  under  order  of  distribution 158,  239 

presumption,  of  regularity' of  proceedings  of  probate  court    .     .  8 

of  testator's  knowledge  of  contents  of  will 21 

of  sanity   .          31 

as  to  attestation  of  witnesses 23 

of  testator's  intention  to  revoke 44 

of  death  of  absent  person 86,  232 

EXECUTION, 

land  held  on,  by  executor,  &c.,  deemed  personal  assets    .     .  131,  221 
may  be  sold,  before  foreclosure  of  right  of  redemption,  in 

same  manner  as  personal  estate 131 

if  not  sold  or  redeemed,  to  be  distributed  as  personal  estate  221 


INDEX.  379 

EXECUTION  (continued).  Page 

for  costs,  may  be  issued  by  probate  courts 9 

may  issue  against  lieir,  who  neglects  to  pay  his  share  of 

expense  of  partition 254 

EXECUTORS, 

liow  appointed 67 

who  may  be 67 

minor  cannot  act  as 67 

if  minor,  the  other  executor,  if  any,  to  act  alone 67 

register  of  probate  not  to  be  in  his  county 14 

to  give  bond  to  return  inventory,  &c 68 

if  residuary  legatee,  may  give  bond  to  pay  debts  and  legacies  69 
admits  assets  by  giving  bond  to  pay  debts  and  legacies,  and 

must  pay 69 

when  may  give  bond  without  sureties 70 

neglecting  or  refusing  to  accept  trust,  or  to  give  bond,  admin- 
istration may  be  granted  as  of  intestate  estate     ...  72 
may  be  removed  for  not  giving  new  bond  when  required      .  113,  282 

may  be  removed  for  insanity 113 

for  evident  unsuitability 113 

for  maladministration 114 

lawful  acts  of,  remain  vaUd,  though  removed 116 

unlawful  acts  of,  may  be  ratified 71 

may  resign  by  leave  of  court 116 

to  return  inventory,  imless  he  gives  bond  to  pay  debts     .     .     .  118 

may  sell  personal  estate 180 

may  adjust  claims  by  arbitration  or  compromise,  by  leave  of 

court 133 

to  give  notice  of  appointment  within  three  months 135 

to  make  affidavit  that  such  notice  was  given 136 

affidavit  made  evidence  of  fact  of  notice 136 

proceedings  when  notice  was  not  given 136 

actions  against,  limited  to  two  years 137 

except  when  he  receives  new  assets 137 

or  action  fails  from  formal  defect 137 

not  liable  to  actions  within  one  year,  except 140 

liable  to  actions  for  two  years,  though  estate  has  been  distrib- 
uted   143,  note 

when  to  pay  legacies 140 

interest  on  legacies 141 

when  may  take  bond  from  legatee  as  security 141 

may  sell  lands  of  testator,  under  license  of  court.     (See  Sale  of 
Lands.) 

may  mortgage  lands  by  leave  of  court 189 

to  render  accounts 194 

with  what  chargeable  in  his  account 197 

what  allowed  to  him 204 

compensation  of 206 


380  INDEX. 

EXECUTORS  {continued).  Page 

bond  of,  nia3'  l)t?  put  in  siiit 282 

may  appeal  from  decree  of  probate  court 291 

(insolvetd  esUihs),  wlien  to  reiircseiit  estate  insolvent     ....  142 
failing  to  rej)resent  insolvency  of  estate,  may  be  liable  per- 
sonally       144 

how  may  pay  preferred  debts  without  liability      ....  145 
having  given  Ijond  to  pa}-  debts  and  legacies,  cannot  repre- 
sent tlie  estate  insolvent 145 

to  oppose  allowance  of  unjust  claims  presented  to  commis- 
sioners        150 

may  appeal  from  decisions  of  commissioners 153 

when  appeal  may  be  waived  and  claim  submitted  to  arbi- 
tration        155 

failing  to  si'ttle  bis  accounts  in  six  months  after  return  of 

connuissioners,  how  liable 157 

how  to  make  <listribution 157 

how  may  perpetuate  evidence  of  distribution 158 

EXPERTS, 

evidence  of,  on  questions  of  sanity 82 

F. 

FATHER, 

when  entitled  to  administration  as  next  of  kin 78 

guardian  by  nature,  of  minor  cliild 90 

when  entitled  to  custody  of  child,  though  other  person  is  guar- 
dian     91 

may  appoint  guardians  for  his  children  by  will 92 

may  not  appoint  guardians  for  other  children,  though  he  gives 

them  his  property 93 

rights  of,  how  affected  by  adoption  of  children 298 

FOREIGN  EX1>:CUT0HS  AND  ADMINISTRATORS, 

may  be  licensed  to  sell  land  of  deceased  in  this   State  to  pay 

debts,  &c 180 

first  to  file  copy  of  appointment  in  probate  court  of  any  county 

where  land  lies 180 

if  not  sufficiently  bound  in  place  of  appointment,  to  give  bond  .     180 
to  give  further  bond,  if  licensed  to  sell  more  than  enough  to 

pay,  &c 181 

proceedings  of,  under  license 181 

all  proceedings  in  court  to  be  in  county  where  appointment  is 

first  filed 186 

FOREIGN  GUARDIANS, 

may  be  licensed  to  sell  land  of  ward  in  this  State 185 

first  to  file  copy  of  appointment  in  court  of  any  county  where 

land  lies 185 

if  not  sulficiently  bound  in  place  of  appointment,  to  give  bond     185 


INDEX.  881 

FOREIGN  GUARDIANS  {continued).  Page 

to  give  further  bond,  if  licensed  to  sell  more  than  enough  to 

pay,  &c 186 

to  give  additional  bond,  if  licensed  to  sell  for  maintenance  of 

ward,  or  investment 186 

proceedings  of,  under  license 186 

all  proceedings  in  court  to  be  in  county  where  copy  of  appoint- 
ment is  first  filed 186 

when  may  remove  property  of  ward  from  State 97 

FOREIGN  WILLS, 

may  be  proved  in  this  State,  if  provable  where  made  ....      56 

proceedings  in  such  cases 56 

proved  in  any  other  State,  may  be  allowed  and  recorded  here, 

when 58 

proceedings  in  sucli  cases 58 

effect  of  such  allowance 68 

FRAUD, 

will  ohtaine<l  by,  void 39 

FRAUDULENT  CONCEALMENT, 

of  estate  of  deceased  persons  and  wards,  proceedings  for  dis- 
covery     122 

"FULL  AGE," 

when  attained .18,  note 

« 

G. 

GRANDCHILDREN, 

when  entitled  to  administer  as  next  of  kin 78 

wlien  inherit 221 

GRANDPARENTS, 

when  entitled  to  administer  as  next  of  kin 78 

when  inherit 221 

GUARDIANS, 

may  be  appointed  by  probate  court 90 

first  appointed  to  have  whole  charge  of  ward's  estate  ....  7 
register  of  probate  not  to  be  in  his  county,  except  of  his  minor 

child U 

to  give  bond  approved  by  court 99 

when  exetnpted  from  giving  bond  for  proceeds  of  sale  of  real 

estate 99 

may  sell,  transfer,  &c.,  stocks  of  ward,  by  leave  of  court,  and 

invest  proceeds 132 

may  sell  lands  of  ward.     (See  Sale  of  Lands.) 

removal  of 113 

resignation  of 116 

to  return  inventory 118 

proceedings  when  effects  of  ward  are  concealed,  embezzled,  &c.  122 

may  be  cited,  if  suspected  of  concealing,  &c.,  ward's  estate  .     .  122 


382  INDEX. 

GUARDIANS  (ronlhuied).  Page 

coiiiponsation  of 215 

of  niarrieil  man  to  join  with  wife  in  release  of  dower  and  lionie- 

stoad,  when  autliorized  by  court 275 

to  render  accounts  (see  Arriniiiis) 194 

accounts  of  joint,  allowed  on  oath  of  one 218 

may  sell  personal  estate 130,  note 

may  adjust  demands  by  compromise  or  arbitration,  under  au- 

tliorit^'  of  court 133 

may  petition  for  partition  of  ward's  real  estate 247 

may  assign  dower  in  ward's  estate 258,  note 

when  may  purchase  interests  in  real  estate  of  ward      ....  133 

may  niortwage  real  estate  of  wards,  when 189 

illegal  acts  of,  iu)w  ratified  (see  Forei/pi  Guardians) 71 

ofviinors,  may  be  nominated  by  ward  over  age  of  fourteen  .     .  93 
may   be   nominated   in  court,   or    before    justice   of    the 

peace 93 

person  nominated  nmst  be  suitable 90 

continues  in  office  till  minor  arrives  at  full  age      ....  91 

who  are  suitable  to  be 91 

to  have  care  of  ward's  estate 91 

when  to  have  custody  of  ward's  person 91 

may  be  appointed  by  will  of  father 92 

petition  for  appointment  of 93 

when  citation  to  issue 93 

of  insane  persons,  who  to  apply  for  appointment  of 94 

fourteen  days'  noticre  of  petition  to  be  given  to  supposed 

insane  person 94 

supposed  insane  person  to  be  heard,  and  allowed  expense 

of  defending  himself  against  complaint    ....  96 

who  are  suitable  to  be 96 

how  discharged 116 

of  spendthrifts,  who  may  complain 94 

fourteen  daj's'  notice  of  complaint  to  be  given  to  alleged 

spendthrift 94 

copy  of  com])]aint  filed  in  registry  of  deeds,  effect  of     .  94,  note 
alleged  spendthrift  to  be  heard,  and  allowed  expense  of  de- 
fending himself  against  complaint 96 

who  are  suitable  to  be 95 

how  discharged 116 

of  married  icomen,  when  may  be  appointed  by  probate  court      .  97 

notice  to  liusband  before  appointment 98 

general  powers  and  duties  of 98 

may  be  authorized  to  release  dower  and  homestead  right 

of  msane  ward 275 

of  persons  out  of  the  State,  may  be  appointed  by  the  probate  court 
for  the  county  in  which  there  is  any  estate  of  the 
foreign  minor,  insane  person,  or  spendthrift     .     96,  97 


INDEX.  383 

GUARDIANS  (continued).  Page 

ad  litem,  may  be  appointed  to  examine  guardian's  accounts  .     .  216 

in  proceedings  for  partition  of  land 248 

in  proceedings  for  adoption  of  cliildren 298 

H. 

HANDWRITING, 

of  attesting  witness,  when  may  be  proved 53 

HEIRS, 

who  to  be,  of  intestate  property 220-234 

HOMESTEAD, 

estate  of,  may  be  assigned  to  widow  or  minor  children,  in  same 

manner  as  dower 274 

of  insane  married  woman  may  be  released  by  her  guardian, 

by  leave  of  court 275 

husband  to  petition  in  such  case 276 

notice  and  hearing  on  petition 276 

guardian,  when  authorized,  to  join  husband  or  trustee  in  con- 
veyance       277 

when  proceeds  of  sale  to  amount  of  $800  may  be  ordered  to  be 

held  by  guardian  for  wife's  benefit 277 

proceedings  to  be  in  county  where  husband  resides      ....     277 
HUSBAND, 

to  administer  wife's  estate,  unless 82 

to  inherit  wife's  real  estate,  if  she  leaves  no  kindred    ....    222 

entitled  to  personal  estate  of  deceased  wife 229 

right  of,  as  tenant  by  the  curtesy,  not  affected  By  statute  of  de- 
scents      222 

of  insane  wife,  may  petition  for  release  of  her  dower  and  home- 
stead right  in  his  real  estate 275 

proceedings  on  such  petition 276 

I. 

ILLEGITIMATE  CHILDREN, 

heirs  of  motlier  and  maternal  ancestor 223 

estate  of,  descends  to  motlier 224 

whose  parents  have  intermarried,  considered  legitimate   .    .     .     224 
omitted  in  parent's  will,  not  to  share  in  his  estate 228 

INFANTS, 

cannot  dispose  of  property  by  will 18 

when  attain  full  age 18,  note 

cannot  adinitiister 67,  81 

INHERITAN'CE, 

by  "  ri(.dit  of  representation,"  how  construed 224 

INSANE  PERSON, 

guardian  may  be  appointed  for 94 


384  INDEX. 

INSANE  PEESON  {ronthued).  Page 

who  may  apply  for  appointment  of  guardian  of 94 

to  have  fourteen  days'  notice  of  the  application 94 

allowance  for  expense  of  defcndinjj  himself  against  complaint .  94 

how  discliarged  from  guanlinnship 116 

if  married  woman,  guardian  may  be  ajtpointed  for 97 

right  of  dower  and  homestead  in  husband's  real  estate,  how 

released 275 

provision  may  be  made  for,  from  proceeds  of  sale  of  hus- 
band's real  estate 277 

INSANITY, 

evidence  on  the  question  of 31 

hereditary 33 

attesting  witnesses  may  give  opinion  of  testator's  capacity  .     .  31 

testimony  of  experts,  as  to 32 

suicide,  as  evidence  of 32 

contents  of  will,  &c.,  admissible 33 

fact  of  guardianship  as  evidence  of 33 

eccentricity  distinguished  from 34 

life,  opinions,  and  habits  of  testator  may  be  reviewed,  to  test 

allegation  of 85 

induced  by  what  diseases 36 

intemperance 36 

lucid  intervals 37 

partial,  —  monomania 38 

INSOLVENT   ESTATES, 

how  to  be  applied 142 

to  be  representee^  insolvent  by  executor,  &c 142 

when  representation  to  be  made 144 

executor,  &c.,  neglecting  to  make  representation,  may  be  per- 
sonally liable 144 

representation  need  not  be  made,  if  estate  is  only  sufficient  to 

pay  preferred  debts 145 

commissioners  may  be  appointed 146 

warrant  to  may  be  revoked 9 

person  employed  in  probate  office  not  to  be,  unless    ...  10 

vacancy  in  office,  how  filled 147 

to  be  sworn 147 

to  appoint  times  and  places  of  meetings  to  receive  claims  .  147 

niaj'  examine  claimant  on  oath  .          148 

maj'  administer  oaths  to  claimant  and  witnesses    ....  148 

to  liquidate  and  balance  all  mutual  demands 148 

to  return  separate  lists  of  partnership  and  individual  claims    151 

six  months  allowed  for  proof  of  claims 146 

when  time  may  be  extended 146 

claims  payable  absolutely  may  be  proved  before  maturity    .     .  148 

copartnership  debts  may  be  proved 148 

debts  secured,  not  to  be  proved  unless  security  is  surrendered  .  149 


INDEX.  385 

INSOLVENT   ESTATES  (continued).  Page 

security  may  be  estimated  and  balance  of  claim  proved     .  149 
not  presented,  barred  unless  further  assets  come  to  executor's 

hands 160 

executor's  claim  to  be  presented  to  the  court 150 

contingent  debts,  how  proved 151 

what  are 151 

interest,  allowance  and  rebate  of 149 

appeals  from  commissioners  may  be  taken  by  executor  or  cred- 
itor      153 

to  what  court 153 

notice  to  be  given 154 

when  to  be  entered 153 

proceedings  in 154 

costs  in 154 

not  seasonably  taken,  may  be  allowed  by  supreme  judicial 

court 154 

may  be  waived,  and  claim  submitted  to  arbitrators    .     .     .  155 

arbitrators,  how  appointed 155 

proceedings  of 155 

distribution,  to  be  in  thirty  days  after  commissioners  return      .  156 

distribution,  &c.,  in  case  of  appeal 156 

further,  to  be  made,  if  whole  assets  are  not  distributed  by 

first  decree 156 

partnership  and  separate  estate  to  be  distributed  separately  157 

unclaimed  dividends  may  be  deposited 168 

evidence  of  distribution,  how  perpetuated 158 

unclaimed  dividends,  how  distributed 138 

creditors,  when  required  to  refund  money  paid  by  executor,  144,  note 

preferred 142 

allowed  six  months  to  prove  claims 146 

further  time  by  leave  of  court 146 

of  deceased  copartner  may  prove  claim 148 

whose  claim  is  not  matured  may  prove  it 148 

if  secured,  must   waive  security,  or  prove  only  balance  of 

claim 149 

provisions  as  to  contingent  claims 151 

may  appeal  from  decision  of  commissioners 153 

proceedings  on  appeal 154 

remedy  of,  when  appeal  is  not  seasonably  taken    ....  154 
not  to  bring  actions  after  representation  of   insolvency, 

except 159 

disposition  of  actions  brought  before  representation  .     .     .  161 

claims  of,  not  presented  to  commissioners,  barred,  except  .  160 
may  cause  commission  to  be  opened,  when  new  assets  come 

to  executor 160 

claim  of,  not  barred  by  lapse  of  time,  when  there  are  new 

assets 160 

25 


386  INDEX. 

INSOLVENT   ESTATES    (continued).  Page 
may  sue  after  eighteen  months,  if  question  of  insolvency  is 

not  then  deterniineil 161 

must  sue  witliin  two  years       IGl 

if  assets  are  sufficient,  to  he  paid  in  full KiO 

insufficient,  to  he  paid  ratably 101 

preferred,  paid  in  full 157 

of  foreigners 102 

assets  not  to  he  sent  to  foreign  executor,  till  residents  have 

received  just  share 102 

citizens  of  this  State  first  to  receive  just  proportion  .     .     .  162 

residue,  how  disposed  of 163 

INTEREST, 

how  computed  on  legacies 141 

on  claims  against  insolvent  estates 149 

■when  executors  and  administrators  chargeable  with     ....  201 

when  with  compound 202 

guardians  and  trustees  chargeable  with 212 

when  with  compound 213 

on  money  advanced,  when  allowed  to  executors,  &c.     .     .      207,  215 

on  claim  of  executor,  &c.,  against  estate  of  deceased   ....  210 
INTOXICATION, 

will  made  by  person  in  state  of 36 

INVENTORY, 

to  be  returned  by  executors  and  administrators  in  three  months 

after  appointment 118 

by  special  administrators  when  required  by  court 88 

by  guardians  and  trustees,  when  ordered  by  court     .     .     .  118 
not  required   of  executors  who  have  given  bond  to  pay  debts 

and  legacies 118 

of  trustees,  when  court  deems  it  unnecessary 118 

objects  of 118 

•what  to  be  included  in 119 

appraisers,  may  be  appointed  by  court 120 

by  justice  of  the  peace,  when  estate  is  in  his  county     .     .  120 

appointment  may  be  revoked 9 

person  emploj'ed  in  probate  office,  not  to  be,  unless  .     .     .  120 

must  first  be  sworn 120 

to  deliver  inventory  to  executor,  &c 121 

to  be  sworn  to  by  executor 121 

of  partnership  and  separate  estate,  to  be  returned  on  different 

schedules 121 

of  wards  having  same  guardian,  when  to  be  separate  schedules  121 
INVESTMENT, 

of  personal  estate,  in  hands  of  guardians  and  trustees,  by  order 

of  court 132 

proceedings  in  such  cases 132 


INDEX.  387 

J. 

JOINTURE,  Page 
to  bar  dower,  to  consist  of  freehold  estate  for  -wife's  life,  at 

least 264 

and  to  take  effect  immediately  on  husband's  death   .     .     .  26i 

■wife's  assent  to,  how  to  be  expressed 264 

when  may  be  waived  and  dower  claimed 265 

widow  evicted  from  land  held  as,  may  be  endowed,  as  if  joint- 
ure had  not  been  made 269 

JUDGES  OF  THE  PROBATE  COURT, 

to  take  oaths  prescribed  by  the  constitution   .......  11 

additional  oaths 11 

may  interchange  services,  or  perform  each  other's  duties      .     .  11 
when  interested,  absent,  or  the  office  is  vacant,  register  to  pro- 
cure attendance  of  some  other  judge 11 

record  how  made,  and  business  how  done  in  such  case  ....     12 

when  disqualified  by  reason  of  interest 11,  12,  note 

not  to  be  counsel  or  attorney  in  certain  cases 13 

to  make  rules  of  practice 7 

may  frame  and  issue  necessary  warrants 8 

decrees  of,  to  be  in  writing,  and  recorded 8 

may  do  certain  official  acts  in  vacation 8,  74 

may  appoint  assistant  registers  in  certain  counties 14 

may  appoint  a  temporary  register 15 

JURISDICTION.     (See  Probate  Courts.) 
JUSTICE  OF  THE  PEACE, 

may  administer  oaths  required  in  probate  proceedings     ...  9 

may  summon  witnesses 52 

may  appoint  appraisers,  when  estate  to  be  appraised  is  in  his 

county 120 

K. 

KINDRED, 

degrees  of,  computed  according  to  rules  of  civil  law    ....  77 

lineal 78 

collateral 78 

what,  to  inherit  estates 220 

of  half  blood,  to  inherit  with  those  of  whole  blood 226 

(See  Next  of  Kin.) 

L. 

LEGACIES, 

when  payable 140 

interest  allowed  on,  after  one  year 141 

LEGATEE, 

when  entitled  to  interest  on  legacy 141 


388  INDEX. 

LEGATEE  (continued).  Page 

receiving  wliole  or  part  of  legacy  before  two  years,  may  be  re- 
quired to  give  bond  to  indemnify  executor     ....     141 
may  complain  of  person,  embezzling  estate  of  deceased    .     .     .     122 
may  apply  for  leave  to  bring  action  on  bond  of  executor,  &c.  .     283 
LICENSE  TO  SELL  REAL  ESTATE.     (See  Sale  of  Lands.) 
LIMITATION  OF  ACTIONS, 

against  executors  and  administrators,  baving  given  notice  of 

appointment,  to  two  years  from  giving  bond  ....     137 
except  when  new  assets  are  received  by  executor,  &c., 
after  the  two  years,  or  action  fails  from  formal  de- 
fect, &c 137 

when  new  assets  are  received,  or  action  is  abated,  &c., 
action  may  be  brought  within  one  year  after  cred- 
itor has  notice  of  new  assets,  or  after  abatement,  &c., 

of  action 137 

against  public  administrators  imder  general  bond,  two  years 

from  date  of  letters  of  administration 138 

against  new  administrator,  two  years  after  giving  bond,  un- 
less, &c 138 

creditor,  whose  right  of  action  accrues  after  the  two  years,  to 

bring  action  in  one  year  after  claim  becomes  payable  .     139 
against  sureties  in  guardian's  bond  to  four  years  from  guar- 
dian's discharge,  except,  &c 288 

LOST  WILLS, 

presumed  to  have  been  revoked 56 

may  be  admitted  to  probate,  if  fact  of  loss  and  contents  are 

proved 67 

LUCID  INTERVAL, 

wills  made  in,  valid 87 

evidence  of 37,  88 

LUNATIC.     (See  Insane  Person.  —  Insanity.) 


M. 

MARK, 

will  sufficiently  signed  by .    .    •    .  19 

how  identified 19,  53 

MARINERS  AT  SEA, 

may  make  nuncupative  will 69 

who  are,  within  the  statute 60,  62 

nuncupative  will  of,  how  made 61 

how  proved 62 

MARRIAGE, 

does  not  alone  work  revocation  of  will 47 

and  birth  of  child  revokes  will 48 

of  parents  of  illegitimate  children,  effect  of 224 

of  absent  heir,  not  presumed 233 


INDEX.  389 

MARRIED  WOMAN,  Page 

may  be  executrix,  administratrix,  guardian,  or  trustee     ...      68 

having  property,  guardian  may  be  appointed  for 97 

general  powers  and  duties  of  such  guardian 98 

being  insane,  may  have  guardian 98 

dower,  or  homestead  right  of,  in  husband's  lands,  how  may  be 

released 233 

MARSHALLING  OF  ASSETS, 

on  executor's,  &e.,  petition  for  sale  of  lands,  when  will  of  de- 
ceased makes  provision  for  payment  of  debts,  &c.     169,  172 
MEDICAL  WITNESSES, 

when  may  testify  on  question  of  sanity 32 

MINORS, 

cannot  act  as  executor 67 

as  administrator 81 

guardians  may  be  appointed  for,  by  court 90 

by  will  of  father 92 

over  fourteen  years  of  age  may  nominate  guardian  ....     90,  93 
child  of  deceased  person  entitled  to  articles  of  apparel  and  orna- 
ment   124 

to  allowance  from  estate  of  deceased  father  when  there  is 

no  widow 124 

guardian  ad  litem,  may  be  appointed  for 216,  248,  298 

MONOMANIA, 

distinguished  from  eccentricity 35,  38 

MORTGAGE, 
•    land  held  in,  by  executor,  deemed  personal  estate   .     .     .      131,  221 
and  may  be  sold  before  right  of  redemption  is  foreclosed, 

as  personal  estate 131 

if  not  sold  or  redeemed,  how  distributed 221,  note 

partition  of,  among  persons  interested 256 

of  real  estate,  by  executors  and  administrators 188 

by  guardians 189 

by  trustees 190 

MOTHER, 

when  entitled  to  administer  as  next  of  kin 78 

guardian  by  nature  of  child,  if  father  not  living 90 

when  entitled  to  custody  of  child 91 

when  entitled  to  estate  of  deceased  child 221 

heir  of  illegitimate  child 224 

N. 

NAMES.     {See  Change  of  Names.) 
NEWSPAPERS, 

may  be  selected  by  parties  for  publication  of  citations  on  their 

petitions 10 

if  paper  so  selected  insufficient  to  give  due  publicity,  judge  may 

order  publication  in  one  other 10 


390  INDEX. 

NEXT  OF  KI\,  Page 

determined  by  rules  of  civil  law 77,  225 

when  entitled  to  administer,  and  in  what  order 77,  79 

renouncing  administration,  have  no  right  to  nominate  adminis- 
trator       79 

if  renounce  administration,  other  kindred  have  no  right  to  ad- 
minister        79 

no  right  to  claim  other  than  original 83 

to  inherit  estates 220 

NON  COMPOS.     (See  Insane  Person.  — Insanity.) 

KOTICE, 

of  their  appointment  to  be  given  by  executors  and  administra- 
tors, within  three  months 135 

unless  given,  statute  of  limitations  does  not  apply 135 

evidence  that  notice  was  given,  how  perpetuated 136 

of  time  and  place  of  sale  of  lands  under  license 174 

affidavit  that  such  notice  was  given  to  be  filed  and  recorded      .  175 

effect  of  such  affidavit 175 

to  parties,  wlien  may  be  dispensed  with 9 

NUNCUPATIVE  WILL, 

what  is 59 

may  be  made  by  soldiers  in  actual  service  and  mariners  at  sea  60 

how  made 61 

who  are  soldiers  in  actual  service 61 

mariners  at  sea 60,  62 

how  proved 62 

no  particular  number  of  witnesses  necessary  to  establish      .    .  62 

o. 

OATHS, 

to  be  administered  by  judge,  register,  or  justice  of  peace     .    .        9 

certificate  of,  to  be  filed 10 

may  be  required  to  be  before  judge  in  open  court 10 

of  claimants  and  witnesses  by  commissioners  of  insolvent  es- 
tates   148 

OLD  AGE, 

as  affecting  testamentary  capacity 30 

OVERSEERS  OF  THE  POOR, 

notice  to  be  given  to,  before  license  granted  to  guardian  of  in- 
sane persons  or  spendthrifts  to  sell  land 184 

P. 

PARENTS, 

when  entitled  to  administer  as  next  of  kin 78 

natural  guardians  of  minor  child 90 

when  to  have  custody  of  minor  child,  under  guardianship  of 

another  person 91 


INDEX.  391 

PARENTS  (continued).  Page 

when  to  inherit  estate 221 

deprived  of  legal  rights  as  respects  adopted  child 298 

PARTITION. 

court  may  make  among  heirs  and  devisees,  and  persons  holding 

under  them 2-14 

and  among  joint  tenants,  coparceners,  or  tenants  in  com- 
mon    244 

cannot  be  made  when  sliares  of  parties  are  in  dispute,  uncer- 
tain, &c 244 

may  be  made  notwithstanding  existence  of  lease 245 

proceedings  for,  commence  by  petition 246 

who  may  petition  for 246 

notice  of  petition  to  be  given 247 

who  entitled  to  notice  of  petition 247 

minors  and  insane  persons  having  no  guardians,  to  have  guar- 
dians for  the  suit  appointed 248 

persons  not  in  being,  iiow  to  be  protected 248 

three  or  five  commissioners  to  be  appointed  by  court   ....  248 
person  employed  in  probate  office  not  to  act  as  commissioner, 

unless 248 

if  estate  lies  in  dififerent  counties,  separate  warrants  may  be  is- 
sued to  different  commissioners  in  each  county    .     .     .  248 

warrant  may  be  revoked 9 

absent  heirs  and  devisees  to  have  agents  appointed  for  them    .  249 

commissioners  to  be  sworn 249 

to  give  notice  to  persons  interested  of  time  and  place  of 

making  partition 249 

all  to  meet  for  performance  of  duties,  but  act  of  majority 

valid 249 

to  be  of  all  estate  of  deceased,  which  any  party  interested  re- 
quires to  have  included 250 

each  party's  share  to  be  set  off,  unless  two  or  more  consent  to 

hold  in  common 250 

when  any  part  of  estate  cannot  be  divided  without  injury,  &c., 
it  may  be  assigned   to   one,  he  paying  difference  to 

others 260 

males  to  be  preferred  to  females,  and  elder  sons  to  younger .     .  250 
whole  or  any  part  may  be  set  off  to  one  or  more,  they  paying 

to  others  sums  awarded  by  commissioners     ....  250 

advancements  to  be  considered 250 

return  of  commissioners,  what  to  contain 252 

not  confirmed  unless  parties  interested   assent,  or   liave 

notice 252 

not  confirmed  until  sU^ns  awarded  by  commissioner  are 

paid  or  secured 263 

may  be  committed  anew  to  same  or  otlier  commissioners  .  253 

where  to  be  recorded 254 


392  INDEX. 

PARTITION  [contmued).  Page 

expenses  of,  how  ascertained  and  paid 254 

execution  for,  may  issue  against  party 254 

upon  wliym  binding 255 

of  lands  owned  in  common  by  deceased  with  otliers     ....  254 

description  of  such  land  to  be  annexed  to  petition     .     .     .  246 

notice  to  be  given  to  co-tenant 247 

proceedings  dismissed  or  stayed,  if  party  interested,  other  than 

heir  or  devisee,  is  out  of  the  State 255 

of  lands  lield  by  executor,  &c.,  in  mortgage  or  on  execution,  how 

made 256 

PERPETUATION   OF   EVIDENCE, 

by  executors  and  administrators,  that  notice  of  their  appoint- 
ment was  given 136 

by  executors,  &c.,  selling  land  under  license,  that  notice  of  time 

and  place  of  sale  was  given 175 

by  executors,  &c.,  of  payments  made  under  decree  of  court    .  239 
PERSONAL   ESTATE, 

sale  of  maj'  be  ordered  by  court 130 

may  be  sold  b3'  executors,  &c.,  without  order 130 

how  to  be  accounted  for 197 

mortgages  of  land,  and  land  taken  on  execution,  in  hands  of  ex- 
ecutor, &c.,  deemed 131 

in  hands  of  guardian  or  trustee,  may  be  sold  by  order  of  court 

and  invested 132 

debts,  &c.,  held  by  executor,  &c.,  may  be  sold  by  order  of  court  131 

proceedings  in  such  cases 131 

allowance  to  widows  and  minor  cliildren  to  be  from,  except      .  125 
vested,  contingent,  or  possible  interest  in  may  be  sold  by  execu- 
tors, &c.,  under  license 131 

distribution  of,  among  heirs 229 

POSTHUMOUS   CHILDREN, 

guardian  of,  may  be  appointed  by  father  in  his  will 92 

considered  as  living  at  death  of  parent 226 

omitted  in  father's  will,  to  take  sliare  as  of  intestate  estate  .     .  228 
"PRESENCE    OF   TESTATOR." 

what  amounts  to 22 

PRESUMPTIONS, 

of  regularity  of  certain  proceedings   of  probate  courts  after 

twenty  years 8 

of  testator's  knowledge  of  contents  of  his  will 21 

sanity 31 

as  to  attestation  of  witnesses 21 

of  testator's  intention  to  revoke  will 44 

of  death  of  absent  person 86,  232 

as  to  marriage  and  issue  of  absent  heir 233 

as  to  survivorship,  when  several  persons  perish  by  same  ca- 
lamity       233 


INDEX.  393 

PROBATE   COURTS,  Page 

under  the  colony  charter 1 

province  charter 2 

State  constitution 3 

general  jurisdiction  of 4 

decrees  of,  upon  subjects  witliin  their  jurisdiction,  not  to  be 

questioned  on  collateral  proceedings 5 

when  a  case  is  within  the  jurisdiction  of,  in  two  or  more  coun- 
ties, the  court  first  taking  cognizance  thereof,  to  retain 

the  same 7 

jurisdiction  of,  depending  on  the  residence  of  a  person,  not  to  be 
contested  except  on  appeal,  or  when  want  of  jurisdic- 
tion appears  on  same  record 7 

decrees  of,  to  be  in  writing  and  recorded 8 

when  presumed  to  be  regular  after  twenty  years 8 

may  award  costs  in  contested  cases,  and  issue  execution  ...  9 
have  jurisdiction  of  the  probate  of  wills,  and  granting  adminis- 
tration      6 

of  all  matters  in  relation  to  the  sale  of  trust  estates     ....  7 

of  all  matters  arising  under  wills 7 

of  the  appointment  of  guardians  of  minors  and  others      ...  6 
of  all  matters  relating  to  the  settlement  of  estates  of  deceased 

persons  and  wards 7 

of  petitions  for  adoption  of  children,  and  change  of  names  .     .  7 
of  certain  matters,  relating  to  funds  for  charitable  and  religious 

purposes 103 

of  the  appointment  of  trustees  in  certain  cases 101-105 

in  equity,  concurrently  with  supreme  judicial  court,  of  matters 

relating  to  trusts  created  by  will Ill 

may  order  release  of  dower  and  liomestead  rights  of  insane 

married  women 275 

PROBATE  OF  WILL, 

conclusively  establishes  its  due  execution 17 

necessary  to  give  it  effect 15,  17 

facts  necessary  to  be  proved 15,  17 

not  barred  by  partial  revocation 49 

petition  for,  to  be  filed  with  will 49 

citation  on  petition  for 50 

how  served 51 

when  may  be  dispensed  with 61 

of  wills  made  out  of  the  State 6(3 

of  wills  accidentally,  &c.,  lost  or  destroyed 56 

of  nuiu;u[iative  wills 69 

PUBLIC  ADMINISTRATORS, 

one  or  more  to  be  appointed  in  each  county 82 

when  entitled  to  administer 82 

not  to  administer  when  husband,  widow,  or  heir  claims  ailmin- 
istration,  or   requests  appointment   of  soiue  suitable 

person 83 


394  INDEX. 

PUBLIC   ADMINISTRATORS  {contimifd).  Page 
authority  of  over  the  estate  ceases,  if  liusband,  widow,  &c.,  takes 

adininisiraiioii 83 

may  give  a  separate  bond  for  each  estate,  or  general  bond  .     .  88 

letters  to  revoked,  if  will  of  deceased  is  afterwards  proved   .     .  116 

to  return  inventory 101 

may  sell  personal  estate 118 

may  adjust  claims  by  compromise  or  arbitration,  when  author- 
ized by  court 133 

to  give  notice  of  appointment  within  three  months 135 

to  make  aflidavit  that  notice  of  appointment  was  given    .     .     .  136 
proceedings  when  notice  was  not  given  .     .     .     .     .     .     .       116,  136 

limitation  of  actions  against 137 

not  liable  to  actions  within  a  3'ear,  except 140 

may  represent  estate  insolvent.     (See  Insolvent  Estates.) 

may  be  licensed  to  sell  lands  for  the  payment  of  debts     .     .     .  164 

proceedings  in  such  case 164 

after  three  years  may  be  licensed  to  sell  lands,  though  not  nec- 
essary to  pay  debts,  when,  &c 186 

proceedings  in  such  case 186 

to  render  accounts  annually,  in  all  cases  (see  Accounts)     .     .     .  194 

to  deposit  balances  with  State  treasurer 240,242 

to  be  notified  of  application  of  heir,  &c.,  to  take  administration 

of  such  balance,  and  appear  for  the  Commonwealth  .     .     .  241 


R. 

REAL  ESTATE, 

held  by  executors,  &c.,  in  mortgage  and  execution  deemed  per- 
sonal   131 

specific  performance  of  agreement  for  sale  of 187 

vested,  contingent,  or  possible  interests  in,  may  be  sold  by  ex- 
ecutors, &c 188 

income  of,  to  be  accounted  for  by  guardians  and  trustees      .     .     212 
when  to  be  accounted  for  by  executors,  and  administra- 
tors        202,  note 

descent  of.     (See  Descent.) 

surplus  of  proceeds  of  land  sold  by  executors,  &c.,  deemed  and 

disposed  of,  as 229,  note 

partition  of.     (See  Partition.) 
REGISTKKS  OF  PROBATE, 

election  of 4,  note 

to  take  oaths  prescribed  by  constitution 13 

additional  oath 13 

to  give  bond  to  treasurer  of  Commonwealth 14 

not  to  be  of  counsel  in  any  matter  pending  in  his  court  ...  14 
not  to  hold  certain  trusts,  nor  be  interested  in  the  fees  thereof .  14 
to  have  custody  of  records  and  papers  filed  in  probate  office     .       14 


INDEX.  395 

REGISTERS    OF  PROBATE  {continued).  Page 
to  receive  and  keep  wills  deposited  in  probate  office,  and  give 

certificate  thereof 64 

to  perform  duties  required  by  law,  or  prescribed  by  judge    .     .  14 

to  be  appointed  by  governor,  in  case  of  vacancy 15 

may  issue  orders  of  notice  and  citations  at  any  time    ....  8 

to  make  one  copy  of  certain  papers  without  charge     ....  10 

fees  for  additional  copies 10 

may  authorize  suits  on  bonds  in  which  judge  is  principal  or 

surety 286 

assistant,  to  be  appointed  in  certain  counties 14 

to  take  oaths  prescribed  by  constitution 14 

to  give  bond 14 

to  perform  duties,  under  direction  of  register 15 

in  case  of  absence,  neglect,  &c.,  of  register,  may  complete 

records,  and  act  as  register 15 

temporary,  when  may  be  appointed 15 

to  be  sworn 15 

REMAINDERS, 

belonging  to  estate  of  deceased  person,  may  be  sold  for  pay- 
ment of  debts 166  note 

to  be  inherited 220    „ 

REMOVAL  OF  EXECUTORS,  ADMINISTRATORS,  GUAR- 
DIANS, AND  TRUSTEES, 

for  neglect  to  give  new  bond  when  required 118 

insanity 113 

evident  unsuitability 114 

neglect  to  render  account 115 

unfaithful  administration 115 

of  trustee,  when  removal  is  essential  to  interests  of  parties  con- 
cerned      115 

proceedings  for 115 

petition  for,  may  be  by  any  person  interested 116 

lawful  acts  of  executors  and  administrators  remain  valid,  al- 
though removed 116 

of  trustee  holding  funds  bequeathed  to  a  city  or  town  for  char- 
itable, &c.,  purposes 115 

for  neglect  to  make  annual  exhibit 115 

to  be  on  petition  of  five  persons 115 

RENTS   OF  REAL  ESTATE, 

belong  to  heirs  or  devisees 202,  230,  note 

when  to  be  accounted  for  by  executors  and  administrators  .     .  202 

to  be  accounted  for  by  guardians  and  trustees 212 

RESIGNATION     OF      EXECUTORS,     ADMINISTRATORS, 
GUARDIANS,  AND  TRUSTEES, 

may  be  by  leave  of  court 116 

accounts  first  to  be  settled 116 


896  INDEX. 

REVEKSIONS,  Page 
belonging  to  estate  of  deceased  person,  may  be  sold  for  pay- 
ment of  debts 16G,  172,  note 

to  be  inherited 220,     „ 

REVOCATION  OF  WILL, 

manner  of 42 

express,  by  burnintj,  tearing,  &c 42 

to  depend  on  testator's  intention 42 

presumptions  as  to  intention 44 

declared  intention,  without  act,  not  sufficient 43 

declarations,  to  explain  intention 43 

bj'  codicil 46 

later  inconsistent  will 46 

revocatory  writing 46 

implied,  from  marriage,  and  birth  of  children 47 

except  when  will  makes  provision 47 

not  rebutted  by  parol  evidence 47 

from  alteration  of  estate           47 

not  from  partition  by  tenants  in  common 48 

not  from  insanity  of  testator 49 

not  from  increase  in  value  of  the  estate 49 

partial 49 

will  not  prevent  probate  of  will 49 

effect  of,  on  codicil 45 

EEVOCATOllY  WRITING, 

how  to  be  executed 46 

"  RIGHT  OF  REPRESENTATION," 

inheritance  by,  how  construed 224 


s. 

SALE  OF  LAND, 

by  executors  and  administrators, 

to  pay  debts  and  legacies 164 

what  lands  liable  to  be  sold 166 

land  demised  for  term  of  one  hundred  years,  or  more,  so 
long  as  fifty  years  remain  unexpired,  regarded  as 
estate  in  fee-simple  as  to  sale,  &c.    .     .     .  •  .     .     .     167 

undevised  lands  first  liable 169 

license  for,  may  be  granted  by  probate  court    .     .     .    *     .     164 
not  required  by  executor  who  gives  bond  to  pay  debts 

and  legacies 164,  note 

by  executors,  authorized  by  the  will      ....      164,     „ 
granted  only,  when  personal  estate  is  insufficient  to  pay, 

&c 165 

petition  for,  what  to  contain 167 

notice  of 169 

when  may  be  dispensed  with 170 


INDEX.  897 

SALE   OF   LAND  {continued).  Page 

creditor,  competent  witness  in  support  of 170 

to  concur  with  petition 170 

not  usually  granted  after  two  years 172 

does  not  continue  in  force  more  than  one  year 174 

may  be  of  whole  or  specific  part,  when  sale  of  part  only 

would  injure  residue 172 

not  to  be  granted,  if  persons  interested  give  bond  to  pay  or 

furnish  money 171 

when  provision  is  made  in  will  for  payment  of  debts,  assets 

to  be  marshalled  accordingly 169 

not  to  be  made  till  executor,  &c.,  gives  bond  to  account  for 

surplus  of  proceeds 173 

notice  of,  how  to  be  given 174 

affidavit  of,  filed  and  recorded,  to  be  evidence  thereof,  175 

to  be  bj'  auction 176 

except  as  to  fractional  shares 184 

may  be  adjourned      .     .  • 175 

notice  of  adjournment  of,  how  given 176 

to  the  executor,  &c.,  may  be  avoided  by  heirs 176 

requisites  of,  as  against  heirs 177 

as  against  persons  claiming  adversely  to  heirs    .     .     .  178 

executor,  &c.,  may  be  examined  on  oath  as  to 178 

liable  on  his  bond,  for  neglect 179 

limitation  of  actions  for  recovery  of  lands  sold  by  executor, 

&c 178,  note 

surplus  of  proceeds  of,  after  settlement  of  accounts,  con- 
sidered real  estate 229,  note 

executor's  deed,  contents  of 179 

by  public  administrators, 

license  for,  to  pay  debts,  as  in  case  of  other  administrators,  186 
may  be  made  after  three  j'ears,  when  for  the  interest  of 

all  concerned 186 

proceedings  in  such  case 187 

by  foreign  executor  and  administrator, 

may  be  made  in  this  State  by  filing  copy  of  appointment,  &c.  180 
such  executor,  if  not  bound  in  place  of  his  appointment,  to 

give  bond,  &c 180 

when  further  to  give  bond 181 

all  proceedings  by,  to  be  had  in  county  where  copy  of  ap- 
pointment is  first  filed 186 

to  give  notice,  as  prescribed  for  an  executor,  appointed  here,  181 
by  guardians, 

for  payment  of  debts,  when  ward's  personal  estate  is  insuf- 
ficient   181 

license  for,  how  granted 181 

may  be  whole,  or  specific  part,  when  partial  sale  would 

injure  residue 181 


398  INDEX. 

SALE    OF   LAND  (ronthmed).  Page 

bond  to  be  given,  as  in  case  of  executors,  &c 182 

for  maintenance  and  investment,  when  income  of  ward's 
estate   is   insufficient   to   maintain   him    and    his 

family 182 

or,  when  it  is  for  the  benefit  of  ward,  to  invest  proceeds    .  182 

petition  for,  notice  on 182 

license  not  granted,  except  when  ward  is  a  minor,  unless 

overseers  of  the  ])oor  are  notified 184 

to  specify  purpose  of  sale 183 

not  to  be  made  until  guardian  gives  bond  to  sell,  and  ac- 
count, &c.,  for  proceeds  according  to  law      ,     .     .  183 
notice  to  be  as  in  case  of  executors  licensed  to  sell    .     .     .  184 
proceeds  of,  may  be  invested  by  order  of  court     ....  109 
on  petition  of  friend  of  a  minor, 

proceedings  in  such  petition 183 

proceeds  of,  in  such  case,  how  disposed  of 183 

byforeii/n  guardian, 

may  be  made  on  filing  copy  of  appointment 185 

such  guardian,  if  not  bound  in  place  of  appointment,  to 

give  bond  to  account  for  proceeds 185 

to  give  further  bond  to  account  for  surplus,  if  licensed  to 

sell  more  than  enough  to  pay  debts 186 

to  give  additional  bond,  if  sale  is  made  for  maintenance  or 

investment 187 

all  proceedings  to  be  had  in  court  in  which  the  copy  of  ap- 
pointment is  first  filed 186 

SIGNATURE  OF  TESTATOR, 

what  is  sufficient 18 

SISTERS, 

when  entitled  to  administer  as  next  of  kin 78 

when  to  inlierit 221 

SOLDIER, 

in  actual  military  service,  may  make  nuncupative  will     ...  59 

when  in  actual  military  service 61 

wills  of,  how  made  and  proved 62 

"SOUND  MINU" 29-38 

SPECIAL  ADMINISTRATOR, 

when  to  be  appointed 74 

bond  of 88 

to  act,  though  appointment  appealed  from 89 

not  liable  to  actions  by  creditors  of  deceased 138 

when  to  render  account 194 

SPECIFIC  PERFORMANCE, 

of  written  agreement  for  conveyance  of  lands,  when  party  dies, 

or  is  put  under  guardiansliip 187 

conveyance,  how  ordered 187 

effect  of 187 


INDEX.  399 

SPEXDTHRIFT,  Page 

guardian  may  be  appointed  for 94 

who  may  complain  against 94 

complaint  against,  effect  of,  when  filed  in  registry  of  deeds,  94,  note 

to  have  fourteen  days'  notice  of  complaint 94 

if  guardian  appointed,  allowed  expenses  of  defending  himself 

against  complaint 96 

how  discharged  from  guardianship 116 

STANDING  WOOD, 

on  land  of  ward,  may  be  sold  by  guardian  by  license  of  court  .  192 

held  in  dower,  &c.,  wlien  may  be  sold 193 

SUICIDE, 

as  evidence  of  insanity 32 

SUPREME  COURT  OF  PROBATE, 

supreme  judicial  court  constituted 5 

may  re-examine  on  appeal,  and  affirm  or  reverse  decrees  of  pro- 
bate court 6 

may  make  rules  regulating  proceedings  in  probate  courts     .     .  8 

appeal  to,  from  probate  court,  by  whom  may  be  taken     .     .     .  290 

when  to  be  claimed  and  entered 292 

proceedings  on 294 

SURETIES, 

in  bonds  given  to  probate  court,  to  be  inhabitants  of  this  State,  279 

and  such  as  tlie  judge  approves 279 

may  be  discharged,  when  court  deems  it  reasonable  and  proper,  281 
liable,  Avhen  principal  gives  bond  with  new  sureties,  for  all 

breaches  committed  before  approval  of  new  bond   .     .  282 
SURVIVORSHIP, 

not  presumed,  when  both  perish  in  same  calamity 233 


T. 

TEMPORARY  REGISTER  OF  PROBATE, 

when  may  be  appointed 15 

to  be  sworn,  and  certificate  thereof  recorded 15 

TRUSTEES, 

under  wills,  may  be  appointed  by  probate  court,  if  testator 

omits,  &c 101 

or  to  fill  a  vacancy 101 

proceedings  for  appointment  of 106 

when  notice  not  necessary 106,  note 

to  give  Ijond  ajtproved  by  probate  court 106 

neglecting  to  give  bond  considered  as  declining  trust     .     .  108 

when  exempted  from  giving  bond 107 

bond  of,  may  be  put  in  suit 288 

may  be  removed  for  failure  to  give  a  new  bond  when 

required 118 


400  INDEX. 

TRUSTEES  {continued). 

or  for  insanity 118 

or  evident  unsuitability 113 

or  on  application  of  parties  interested,  &c 115 

to  return  inventory 118 

render  accounts  (see  Accounts) 195 

may  be  required  to  sell  trust  property  and  make  invest- 
ments, on  petition  of  any  person  interested  .     .     .  109 

new,  to  give  ])ond 106 

inventory  by,  may  be  dispensed  with 118 

court  maj-  order  conveyances  to,  by  former  trustee     .  102 
may  adjust  claims  by  compromise  or  arbitration,  under  au- 
thority of  court 133 

may  mortgage  real  estate 104,  190-192 

unlawful  acts  of,  how  ratified 71 

compensation  of 215 

under  deeds,  how  appointed  in  case  of  vacancy 101 

any  person  interested  may  petition  for  appointment  of .     .  106 

when  to  give  bond 108 

to  receive  and  hold  highway  damages,  may  be  appointed  by  pro- 
bate court 102 

to  give  bond 102 

of  funds  given  to  towns  for  charitable,  ^c,  purposes,  may  be  removed 

by  probate  court 103 

may  be  appointed  to  fill  vacancy 103 

to  hold  funds  for  the  benefit  of  widows,  in  certain  cases,  may  be  ap- 
pointed by  probate  court 103 

to  hold  proceeds  of  sale  of^tanding  wood  and  timber 193 

in  place  of  trustee  appointed  in  another  State,  who  neglects  to  take 

out  letters  of  trust  here 105 

TRUSTS, 

personal  property  held  in,  may  be  sold  and  invested  by  order 

of  probate  court 109 

proceedings  in  such  cases 109 

court  may  give  further   directions  for  managing,  &c.,  trust 

fund 109 

held  for  the  benefit  of  creditors,  how  may  be  terminated  in  cer- 
tain cases 110 

under  wills,  equity  jurisdiction  of  probate  court  concerning     .  Ill 


u. 

undlt:  influence, 

will  obtained  by,  void 89 

degree  of,  to  invalidate  will 40 

evidence  of 40 


INDEX.  401 


V. 

VESTED  RIGHTS,  Page 

in  real  or  personal  estate,  may  be  released  by  order  of  probate 

court 188 


w. 

WEARING  APPAREL, 

of  widow  and  minor  children  of  deceased  parent  belongs  to  them,  124 
WIDOW, 

when  entitled  to  administer  husband's  estate 79 

if  renounces  administration,  lias  no  right  to  name  administrator,  79 

no  right  to  chiim  other  than  original  administration     ....  83 

holds  lier  articles  of  apparel  and  ornament 124 

entitled  to  allowance  for  necessaries  from  husband's  estate  .     .  124 
to  use  of  liusband's  house,  furniture,  and  provisions,  forty 

days 106 

to  inherit  Imsband's  lands,  if  he  leaves  no  kindred 222 

when  entitled  to  one-third  of  husband's  personal  estate    .     .     .  229 

share  of,  when  husband  dies  without  issue 2'60 

when  she  waives  provisions  made  in  husband's  will  .     229,  note 

advancements.to  iieirs  not  considered  in  computing  .     .     .  237 

when  entitled  to  dower  in  husband's  lands  (see  Doiver)     ,     .     .  257 
may  waive  provision  made  fur  her  by  husband's  will,  and  take 

dower 262 

how  may  make  such  waiver 264 

if  evicted,  &c.,  may  be  endowed  anew 269 

when  entitled  to  iialf  of  husband's  lands  for  life 273 

entitled  to  any  part  of  husband's  lands  for  life  or  widowhood, 

may  have  the  same  assigned  by  probate  court    .     .     .  273 
WILL, 

not  effectual  to  pass  estate  nntil  proved 17 

execution  of,  establislied  by  probate 17 

to  be  in  writing,  and  signed  by  testator 17 

wliat  is  snfficient  signing  of,  by  testator 18 

formal  publication  of,  not  necessary 20 

form  of,  not  material 55 

to  be  attested  Ijy  three  or  more  competent  witnesses  in  testator's 

presence 17 

testator's  "  jtresence,"  what  is 22 

presumptions  as  to  attestation  of  witnesses 2-] 

testator  m\ist  be  of  sound  mind 29 

not  disqiiaiified  by  physical  debility 31 

l)y  old  age 31 

obtained  by  fraud,  void 39 

by  undue  influence,  void 39 

written  by  person  benefited  by  its  provisions 41 

26 


402  INDEX. 

WILL  {conthnied).  ^*8e 

may  be  revoked,  expressly 42 

or  by  iinplicaiion 47 

proceedings  in  probate  of 49 

may  bo  proved,  thouj;h  attestinjr  witnesses  testify  against  it     .  54 

made  out  of  the  State,  liow  proved 5'j 

accidentally  or  fraiululently  destroyed,  bow  proved      ....  66 

proved  out  ot'tbe  State,  may  be  allowed  and  recorded  liere  .     .  58 

effect  of  such  allowance 58 

nuncupative,  by  whom  may  be  made 5y 

how  proved 02 

may  be  deposited  by  testator  in  probate  office G4 

how  to  be  indor.sed  when  deposited 64 

to  be  delivered  only  to  testator,  or  his  order  during  his  life  .     .  64 

to  whom,  after  his  death 64 

person  having  custody  of,  when  to  deliver  it  in  to  probate  court  65 

to  be  imprisoned  for  neglect  to  deliver  it 66 

person  concealing,  may  be  citeil  to  appear 65 

how  cited 65 

may  be  examined  on  oath 66 

refusing  to  appear  or  to  answer,  may  be  committed  ...  66 

not  required  to  criminate  himself 66 

WITNESS, 

how  may  be  s'mnnoned .  52 

creditor  may  be,  in  support  of  petition  of  executor,  &c.,  to  sell 

land  to  pay  debts 170 

(See  Attesting  Witnesses.) 
WKITTEN  AGREEMENT, 

to  sell  land  when  party  dies,  or  is  put  under  guardianship,  how 

enforced 187 


INDEX   TO   FORMS. 


A. 

ACCOUNT,  Page 

petition  that  administrator  may  be  cited  to  settle 849 

ADMINISTRATION, 

petition  for  by  widow 813 

by  next  of  kin 314 

by  person  requested  by  parties  to  administer 315 

by  creditor 315 

by  husband 316 

when  intestate  was  iniiabitant  of  another  State     ....  317 

by  public  administrator 317 

with  will  annexed,  petition  for 318 

de  bonis  non,  petition  for 318 

de  bonis  non,  with  will  annexed,  petition  for 319 

special 320 

ADMINISTRATOR, 

petitions  for  appointment  of 313-320 

removal  of 327 

decree  thereon 327 

resignation  of 328 

decree  thereon 828 

citation  of,  to  render  accounts 349 

ALLOWANCE, 

to  wife  of  insane  person  under  guardianship,  petition  for     .     .  332 

decree  tliereon 833 

APPEAL, 

from  commissioners  of  insolvent  estate,  notice  of  by  creditor  .  842 

by  executor,  &c 343 

from  probate  court,  notice  of 358 

reasons  of   . 358 

not  seasonably  claimed,  petition  for  leave  to  prosecute     .     .     .  359 

waiver  of 360 

cori)j)laint  for  affirniatioii  of  decree 360 

APPRAISAL, 

justice's  order  for 330 


404  INDEX   TO    FORMS. 

ARBITrvATION,  Page 

siil)inission  to,  of  claiin 343 

decree  tliereon 344 

rule  of 344 

award 845 

ATTESTING   WITNESS, 

summous  for 806 


B. 

BOND, 

of  lieirs,  &e.,  to  pay  creditor,  whose  riglit  of  action  accrues  after 

two  years 338 

of  legatee,  who  receives  legacy  within  two  years,  to  indemnify 

executor,  &c 339 

of  heirs,  to  pay  debts,  given  to  prevent  sale  of  real  estate   .     .  345 
of  distributee,  who  receives  share  within  two  years,  to  indem- 
nify administrator 350 

petition  tliat  executor,  &c.,  may  be  required  to  give  new      .     .  354 

decree  thereon 354 

petition  of  surety  in,  to  be  discliarged 355 

decree  thereon 356 

petition  for  leave  to  bring  action  on 356 

decree  thereon 357 


c. 

CITATION, 

return  of  service  of 812 

of  administrator,  to  settle  account,  petition  for 349 

CLAIMS, 

petition  of  executor,  &c.,  for  leave  to  sell  outstanding  ....  333 

decree  thereon 334 

COMPLAINT, 

against  person  suspected  of  concealing  will 310 

of  embezzlement 830 

ffir  affirmation  of  decree  appealed  from 360 

COMPROMISE   OF   DEMANDS, 

petition  for  leave  to  make 836 

decree  thereon 836 

CONVEYANCE   OF   LAND,     , 

petition  for  specific  performance  of  agreement  for 348 

decree  thereon 348 

CREDITOR, 

petition  of,  whose  right  of  action  accrues  after  two  years    .     .  337 

decree  thereon 338 

bond  given  to,  by  heirs  in  such  case 388 


INDEX   TO    FORMS.  405 

CREDITOR  (continued).  Page 
petition  of,  for  furtlier  time  to  prove  claim  against  insolvent 

estate 340 

decree  thereon 341 

notice  of  appeal  of,  from  commissioners  of  insolvent  estate  .     .  342 


D. 

DEBTS, 

petition  of  executor  for  leave  to  sell  outstanding 333 

decree  thereon 334 

DISTRIBUTION, 

petition  of  child  omitted  in  parent's  will  for  share  in     ...     .  350 

bond  of  distributee  to  indemnify  administrator 350 

petition  of  person  entitled  to  money,  deposited  under  decree  of,  351 

decree  thereon 352 

DOWER, 

claim  of,  by  widow  who  waiA'es  provisions  of  husband's  will     .  353 

notice  to  parties  by  commissioners  to  set  off 353 

petition  of  husband  for  release  of  riglit  of  insane  wife.     .     .     .  361 

decree  tliereon 361 


E. 

EMBEZZLEMENT, 

complaint  against  person  suspected  of 330 

warrant  to  commit  person  complained  of 331 

EXECUTOR, 

refusal  of,  to  accept  trust 306 

petition  for  removal  of 327 

decree  thereon 327 

resignation  of 328 

decree  thereon 328 

citation  of,  to  render  account 349 

G. 

GUARDIAN, 

petitions  for  appointment  of 321-324 

GUARDIANSHIP, 

petition  for,  by  widow 321 

by  person  not  a  relative,  the  parent  assenting 821 

by  person  not  a  relative,  the  next  of  kin,  &c.,  assenting     .  322 

by  person  noininateil  by  minor 323 

of  minor,  who  ncfilects  to  n(miiaate 323 

of  minor,  residing  out  of  State 324 

of  waril,  to  be  discharged  from    . 329 

decree  tliereon 829 


40G  IiNDEX   TO    FORMS. 


H. 

HOMESTEAD,  Page 

petition  of  husband  of  insane  wife  for  release  of  estate  of  .     .  861 

decree  tiiereuu 361 


I. 

INSOLVENT   ESTATES, 

petition  of  creditor  for  further  time  to  prove  claim 340 

decree  thereon 341 

commissioners'  notice  of  time  and  place  of  meeting    ....  342 

notice  of  appeal  from  commissioners,  by  creditor 342 

by  executor,  &c 343 

waiver  of  appeal,  and  submission  of  claim  to  arbitration      .     .  343 

order  thereon 344 

rule  issued  to  arbitrators 344 

award  of  arbitrators 345 

INVESTxMENT, 

of  personal  estate,  petition  for  leave  to  make 334 

decree  thereon 335 


L. 

LEGATEE, 

bond  of,  to  indemnify  executor,  &c 339 


N. 
NOTICE, 

to  creditors,  by  commissioners  of  insolvent's  estates    ....  342 

of  appeals  from  commissioners 342,  343 

of  time,  &c.,  of  sale  of  land  under  license 346 

to  heirs,  &c.,  of  time  of  making  partition 352 

to  heirs,  &c.,  of  time  of  assigning  dower 353 

of  appeal  from  probate  court 346 


P. 

PARTITION, 

notice  to  heirs,  &c.,  of  time  of  making 352 

PERSONAL   ESTATE, 

petition  for  leave  to  sell,  and  invest  proceeds 334 

decree  thereon 334 

PROBATE   OF   WILL, 

petition  for,  by  executor 304 

by  other  person  than  executor 305 


INDEX   TO    FORMS.  407 

PROBATE    OF  WILL  (contmued).  Page 

accidentally  destroyed,  petition  for 307 

decree  thereon 308 

nuncupative,  petition  for 308 

decree  thereon 309 

PUBLIC   ADMINISTRATOR, 

petition  of,  for  administration 317 


R. 

REMOVAL  OF  EXECUTOR,  &c., 

petition  for 327 

decree  thereon 827 


s. 

SALE   OF   LANDS, 

administrator's  notice  of  time,  &c.,  of  sale 346 

bond  of  heirs,  to  pay  debts  given  to  prevent 345 

administrator's  deed 347 

SPECIAL   ADMINISTRATOR, 

petition  for  appointment  of 320 

SPECIFIC   PERFORMANCE, 

of  agreement  to  convey  land,  petition  for 348 

decree  thereon  348 

STANDING  WOOD,   ON  LAND   HELD   IN   DOWER, 

petition  for  sale  of 362 

decree  thereon 363 

bond  of  trustee  appointed  to  make  the  sale 364 

SUBPOENA, 

to  attesting  witnesses 306 

SURETY, 

petition  of,  to  be  discharged 355 

decree  thereon 356 


T. 

TRUSTEE, 

petition  for  appointment  of,  to  fill  vacancy 324 

under  statute,  concerning  provision  for  widows     ....     325 
decree  thereon 326 


w. 

WAIVER, 

of  appeal  from  commissioners,  and  submission  to  arbitration   .  843 

by  widow  of  provisions  in  husband's  will 303 

of  api)eal  from  probate  court 300 


408  INDEX   TO    FORMS. 

WIDOW'S  Page 

waiver  of  provisions  made  for  lier  in  husband's  will     ....  353 
WILL, 

petitions  for  jjrobate  of 804,  308 

accidentally,  &c.,  destroyed,  petition  for  probate  of 307 

decree  thereon 308 

nuncupative,  petition  for  probate  of 308 

decree  thereon 309 

petition  tiiat  person  having  custody  of,  may  be  cited    ....  310 

complaint  afjainst  person  suspected  of  concealing 310 

citation  on  such  complaint 811 

warrant  to  commit  person  complained  of  for  concealiag  .     .    .  812 


Cambridge :  Press  of  John  'Wilson  &  Son. 


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